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 after the complainant died before she could testify.

Chief Magistrate Lucas Onyina found Dias Juma Wabwile not guilty of both rape and an alternative charge of committing an indecent act with an adult under the Sexual Offences Act. Delivering his judgment on Monday, August 25, the magistrate said none of the eight prosecution witnesses who testified had actually witnessed the alleged incident.

“I find the accused person not guilty of the main charge and the alternative charge,” Onyina ruled, formally acquitting Wabwile of both counts under Section 215 of the Criminal Procedure Code.

Why the Case Collapsed

According to court papers, the case arose from an alleged incident on January 31, 2025, at Pandya Memorial Hospital in Pandya, Mvita Sub-County, Mombasa County, at around 5am. Wabwile was accused of unlawfully having sexual intercourse with an adult patient, identified in court documents only as M.T.K., who was undergoing dialysis treatment at the time.

The complainant died before the hearing of the case commenced and was therefore unable to give evidence or be cross-examined. The court found that her absence had been adequately explained, but it meant the prosecution was left without the one piece of testimony that could have settled the central question of consent.

The magistrate noted that had the complainant lived long enough to testify, she would have been able to tell the court directly whether she had consented to the encounter. Without that testimony, he said, the court could not simply presume that she had not consented, however suspicious the circumstances appeared.

Onyina acknowledged that the facts of the case made it highly plausible that the accused could have taken advantage of the complainant’s situation, given that she was a patient undergoing treatment at the time. However, he stressed that suspicion alone, no matter how strong, could not form the basis of a criminal conviction. The same reasoning was applied to the alternative charge of indecent touching, since there was no eyewitness to the alleged act and, again, no testimony from the complainant herself.

The magistrate also weighed in on the limits of presumption in such cases, making clear that a lack of evidence could not be filled in by assumption.

“Absence of consent on the part of the complainant cannot be presumed,” Onyina ruled.

Wabwile, a clinical officer at Pandya Hospital, was first charged in early 2025 after the alleged assault was reported.

He denied the charges when he initially appeared before Mombasa Chief Magistrate Alex Ithuku and was released on bond as the case proceeded to trial. The Federation of Women Lawyers in Kenya (Fida-Kenya) had also taken an interest in the matter at the time.

At trial, eight witnesses testified for the prosecution, while Wabwile gave sworn evidence in his own defence and called one additional witness.

In the end, with no eyewitness account and no testimony from the complainant, the court found the prosecution’s case fell short of the standard required to secure a conviction.