How CCTV footage saved man from 15-year jail term

The High Court in Mombasa has quashed a 15-year sentence for a man convicted of defilement after new evidence from CCTV footage shows he was not at the scene of the crime.

The convict, Hussein Sheikh, was sentenced by Chief Magistrate Francis Kyambia to 15 years in prison on January 12, 2024.

However, new evidence from CCTV footage shows that Sheikh was at his place of work in Mombasa’s Shimanzi area at the time when the alleged defilement happened.

Further, the initial report entry (OB 56/23/02/2017) from Central Police Station shows that the complaint of defilement was made against a person other than Sheikh and that the suspect was still at large at the time of reporting the act.

Sheikh produced affidavits sworn by the complainant and her sister, both confirming that the complainant did not accuse Sheikh of defilement and that her testimony during trial was misrecorded.

In her judgement, Justice Wendy Micheni said that given the seriousness of the offence, the length of the sentence imposed, and the nature of the new evidence, the interests of justice demand a retrial, rather than allowing the conviction to stand unexamined.

Justice Micheni said the retrial will allow the evidence to be tested through the adversarial process while protecting the constitutional rights of Sheikh and the public interest in the proper administration of justice.

“The proceedings, conviction, and sentence imposed upon the Petitioner (Sheikh) in Sexual Offence Case No. 326 of 2017 at the Chief Magistrate’s Court, Mombasa, are hereby quashed. A retrial is hereby ordered, to be conducted before a magistrate of competent jurisdiction other than Hon. F. Kyambia,” said Justice Micheni.

She ordered Sheikh to remain in lawful custody pending the determination of bail or bond unless otherwise lawfully released.

She, however, said that Article 50(6) is designed to safeguard against miscarriages of justice, where credible evidence emerges after conviction that casts doubt on the correctness of the verdict, the court must intervene.

“This court is persuaded that the evidence presented is not merely corroborative or cumulative but goes to the root of the conviction,” said Justice Micheni. 

She noted that the CCTV footage constitutes alibi evidence placing Sheikh at a different location at the time the offence was allegedly committed. [Joackim Bwana]