Settling rape cases outside court is unconstitutional, the High Court has ruled.
Justice Anthony Mrima said it is unconstitutional and against international rights protecting women from sexual violence for the police to end rape cases before culprits face the law.
The judge handed the landmark ruling in a case filed by a rape victim who claimed she was forced by the police to settle her case with the perpetrator.
He, however, declined to order for compensation of the victim as the police told the court that the suspect had been charged at the Mavoko Law Court.
The judge observed that since there was little evidence to prove an-out-of court settlement, the the victim was at liberty to pursue the perpetrator if she was not satisfied with the criminal case.
The victim told the court that despite being ordered in writing to take the money, she was not given a copy of the same.
"The evidence at hand seems to be inadequate to enable this court to make a positive finding on the existence of such an agreement. The existence of the out-of-court settlement agreement was, hence, not proved," said the judge.
The student codenamed IW sued the Attorney General (AG) and Inspector General (IG) of Police claiming that the government failed to pursue the culprit.
On average, at least 41 women are rape victim every day, with data from the DPP showing that Kenya recorded a total of 10,442 sex-related and gender-based violence cases between 2021 and 2022.
During the same period, some 2,306 sex-related and gender-based violence cases were withdrawn.
The Director of Public Prosecutions (DPP) attributed the withdrawal of cases to witnesses recanting their evidence, poor investigations, victims' ignorance and legal issues.
Rape, Abuse & Incest National Network (Rainn), a lobby assisting sexual violence victims, indicates that despite Kenya's government having guidelines to handle rape cases, culprits go free as a result of bungling evidence.
Data from the Kenya Demographic and Health Survey shows that 45 per cent of women and girls face a form of gender-based violence annually.
In IW's case, she told the court that inaction by the police frustrated her efforts to get justice.
Even when she sued, Justice Mrima heard that the police silently charged the perpetrator without investigation or even informing her.
"The investigations that were done did not meet the threshold that was established in this case. It was only when we initiated this case that the respondent produced the charge sheet on December 2021 far before we filed this case. No officer or investigator has informed the petitioner of the investigations and prosecution. It is out of formality and not a requirement," argued the complainant.
IW asked the court to hold the AG, IG, and an investigator of the rape case accountable for failing to conduct investigations and charge the man who she says had employed her during the Covid-19 pandemic.
According to court documents, the third-year student had gone to Nairobi after her university closed owing to the Covid-19 pandemic.
She narrated that her relative introduced her to a man who was looking for a sales and marketing agent. The man, who we cannot reveal as it will lead to identifying the student, would later turn out to be her tormentor.
She accepted the job offer and started working at one of the man's business branches. On August 9, 2020, the man offered her a lift home only to rape her in a deserted area.
The court heard that she reported the same to her relative and her boyfriend who advised that she should quit working in the company, keep her clothes for evidence, and report the issue to the police.
She reported the issue to the police. However, the investigating officer at the Mlolongo Police Station told her to report to the doctors that the incident happened at Syokimau and not Makadara, a failure to which, the police station would not help her.
The victim went to Nairobi Women's Hospital and got the report. However, upon return, she found the culprit's vehicle parked at the station.
The officer ordered her to write that it was the police who took her, and that they visited the scene of crime for investigations.
According to her petition in conjunction with the Centre for Rights Education and Awareness (CREAW), despite the results showing that she had been raped, the investigating officer told her to settle the case out of court as it would drag for too long.
Her boyfriend had objected to having the case settled. She narrated that the officer told her that her boyfriend was ruining her case.
According to her, the perpetrator had initially denied it but urged her to settle the issue out of court. She said he offered to pay Sh130,000 in four installments.
The court heard that the investigating officer demanded Sh10,000, which she sent through M-Pesa, and when the officer demanded a second installment of equal amount, she refused to send.
According to her, the police officer who was investigating the case falsified evidence and coerced her to conclude the settlement.
She wants the court to find that the agreement she had with the perpetrator is null and void.
The court was also asked to compel the police to conduct fresh investigations and prosecute the perpetrator.
IW was also seeking compensation for the psychological pain and suffering.
The perpetrator never responded or participated in the case despite being served.
On the other hand, the investigating officer opposed the case. She claimed that after the victim reported, she summoned the perpetrator and released him on a Sh10,000 cash bail.
The officer alleged that the victim came with her sister to the station and indicated that she wanted to settle the case.
The officer alleged that the culprit was charged before the Mavoko Law Court and was out on a Sh200,000 cash bail.
The officer claimed the decision to settle the case out-of-court was squarely on the victim and the culprit and no police officer initiated the negotiations. The investigating officer denied that she demanded money from the victim.
The IG opposed the case arguing that he had no knowledge of the case being settled out-of-court.
According to the IG, the victim ought to have reported the issue to the Independent Policing Oversight Authority before approaching the court.
The IG further said the victim did not prove she was misadvised, coerced or asked to settle the case and pay a bribe.
The AG also responded maintaining that the perpetrator, who is a former police officer, had already been charged in court.
