MOMBASA, Kenya, Aug 25 — A Mombasa court has acquitted a former Pandya Memorial Hospital clinical officer accused of raping a dialysis patient during a treatment session, ruling that the prosecution failed to prove the case beyond reasonable doubt.
Chief Magistrate Lucas Onyina found Dias Juma Wabwile not guilty of rape and an alternative charge of committing an indecent act with an adult under the Sexual Offences Act.
Wabwile was accused of unlawfully penetrating the adult patient, identified in the judgment as M.T.K., at Pandya Memorial Hospital in Mvita Sub-County at around 5am on January 31, 2025.
Eight prosecution witnesses testified, but none witnessed the alleged assault. The complainant died before the hearing began and could not testify.
The court said her absence was adequately explained but meant the prosecution needed strong, independent evidence to establish the charges.
Used condom
The case centred partly on a used condom recovered from a hospital dustbin. Government Chemist analysis found spermatozoa and generated a male DNA profile matching Wabwile’s DNA sample.
Wabwile admitted the condom was his but said he had had sex with his wife at home before reporting to work and carried the used condom to the hospital, where he disposed of it.
His wife, Nancy Gakii, supported his account, telling the court they had sex at about 3.30am that morning and used a condom before Wabwile left for work.
The magistrate questioned the explanation, particularly Wabwile’s claim that he had wrapped the condom in tissue before carrying it to the hospital.
“If he wrapped it in tissue paper as he stated in his testimony, how come it was not so wrapped at the point of its recovery?” Onyina asked.
The court also questioned how the complainant could have known that a condom had been discarded and directed nurses to where it was recovered.
The judgment said the evidence suggested that Wabwile and the complainant may have crossed the boundaries of a professional doctor-patient relationship.
The magistrate further observed that the patient was connected to a dialysis machine and that disconnecting it could result in severe bleeding.
“It is therefore highly likely that the accused person took advantage of the situation and decided, God forbid, to have carnal knowledge of the complainant without the consent of the complainant,” the judgment states.
However, the court stressed that this was an inference rather than proof.
“Absence of consent on the part of the complainant cannot be presumed,” Onyina ruled, adding that had the complainant survived to testify, she could have told the court whether she consented to the intercourse.
The court also faulted investigators for failing to obtain a DNA sample from Wabwile’s wife despite her claim that the condom had been used during sex with her.
The magistrate said the test could have helped establish whether her account was supported by scientific evidence.
“If that assertion were true, then her DNA would have been found on the outer part of the used condom,” the judgment states.
In assessing the circumstantial evidence, the court relied on the Court of Appeal decision in Sawe v Republic, which requires the prosecution to exclude reasonable explanations consistent with innocence.
Onyina concluded that the evidence created a compelling suspicion against Wabwile.
“There is very strong suspicion that the accused, most likely, raped the complainant,” the judgment states.
But the court cautioned that “suspicion, however strong, cannot be a basis of a conviction.”
The magistrate said the court could not fill the evidentiary gap left by the complainant’s death by speculating about what she would have told the court.
“The court cannot guess what the complainant would have said, then make a finding on that basis,” Onyina ruled.
The court ultimately found that the evidence, considered as a whole, could not safely establish beyond reasonable doubt that Wabwile had unlawfully penetrated the complainant.
“I find the evidence on record, looked at as a whole, cannot safely lead to a conclusion that there is proof beyond reasonable doubt that the accused person had unlawful penetration of the complainant,” the magistrate ruled.
The same reasoning was applied to the alternative charge of indecently touching the complainant, particularly because there was no eyewitness and the complainant could not testify.
Wabwile was consequently acquitted of both charges under Section 215 of the Criminal Procedure Code.
“I find the accused person not guilty of the main charge and the alternative charge,” Onyina ruled.
