By Kioko wa Kivandi
A Nakuru Children’s Court has sentenced a man to 75 years in prison for committing an indecent act with his daughter and for deliberately infecting her with HIV. While sentencing the 44 year old man, Senior Resident Magistrate Judicaster Nthuku compared him to a Stoat – a short tailed weasel found in North America – and termed his act as morally, ethically and legally wrong.
David Waweru (44) will serve 25 years for the first crime while concurrently serving 50 years for the second crime.
The court was told that on 12th January 2013, Waweru, while fully aware of his HIV positive status committed the offence to his daughter at their Kianjoya home in Njoro, Nakuru County.
“Knowing that he was infected with HIV, (he) intentionally, knowingly and willfully have sex with the (complainant) when he ought to have known that he would infect her with HIV,” his charge sheet partly read.
The court heard that, on the material day, Waweru came home late and drunk, and after he was served with supper by his daughter, he asked her to move her bedding away from where she was sleeping with her siblings. He then asked her to undress and she complied. He also undressed and forced himself upon her and warned her not to tell anyone lest he beats her up.
She however told her grandmother the next morning who informed her mother and the accused was later arrested and charged with the offence.
While delivering the sentence Senior Resident Magistrate Judicaster Nthuku ruled out incest on him choosing instead to sentence him for the indecent act with his daughter who was aged 12 at the time the offence was committed.
Nthuku observed that there was no evidence to show that there had been penetration during the act. However on the count of deliberate infection with HIV, Nthuku observed the court did not need tests to confirm that the complainant had been infected for the crime to stand.
“All the court needs to be satisfied with (is) that the accused knew he’s HIV positive and that he deliberately did an act which would lead to transmission of the virus to the victim.”
To convict him the court observed that the accused was aware of his HIV status as his wife (and mother of the complainant) had confirmed that she knew his HIV status. Besides, the accused had also confirmed of his status and had even asked for a “special diet” at the prison as he was held since his arrest.
He also admitted to having been a drunk and even used the drunkenness factor in his mitigation.
“I have decided I will never take alcohol again or get myself drunk from whatever substance,” he told the court as he asked for leniency.
“I am a parent with a young family which depends on me for all their needs. I have suffered a lot in prison,” he begged.
The court however said he may have inflicted indelible marks in his daughter’s life and thus gave him the stiff penalty
“so as to be an example to like minded sex predators.”
“The child having been betrayed by her own father may never trust anyone else in her life,” partly read the sentence.
“The acts of the accused are morally, ethically and legally wrong. Even in the animal kingdom other than the Stoat, no animal does this act of having sexual intercourse with its young ones or babies.”
According to the Sexual Offences Act incest or indecent acts can attract imprisonment of not less than 10 years while deliberately infecting someone else with HIV can attract a fine of “not less than 15 years but which can be for life.”
An Appeal has been granted in the next 14 days.