A Mombasa court has acquitted a doctor who had been accused of raping a patient while she was undergoing dialysis, finding that the prosecution had not proved the charge beyond reasonable doubt.
Chief Magistrate Lucas Onyina acquitted Dias Juma Wabwile of both the main charge of rape and an alternative charge of committing an indecent act with an adult.
"I find the accused person not guilty of the main charge and the alternative charge, and accordingly acquit the accused person of the said herein before first stated main count, and the alternative count," the magistrate ruled.
According to court papers, the case arose from an alleged incident on January 31, 2025, at Pandya in Mvita Subcounty, Mombasa County, where the doctor was accused of unlawfully having sexual intercourse with an adult patient, identified in court as M.T.K., at about 5am.
The accused denied both charges during the trial.
Eight prosecution witnesses testified, while Dias gave sworn evidence in his defence and called one witness.
The complainant did not testify because she died before the hearing of the case commenced.
In his judgment delivered on Monday, August 25, Chief Magistrate Onyina said none of the prosecution witnesses had witnessed the alleged incident.
The court nevertheless considered evidence concerning what the complainant had reportedly told other witnesses, as well as forensic evidence presented during the trial.
One of the key pieces of evidence was a used condom recovered from a hospital dustbin after the complainant allegedly told a witness that the doctor had used a condom during the encounter.
DNA analysis of samples from the accused person and the recovered condom confirmed that the semen in the condom had the accused's DNA profile.
Dias acknowledged using the condom but gave a different account of how it ended up at the hospital.
He told the court that he had had sex with his wife at home that morning before going to work and had carried the used condom to the hospital, where he disposed of it.
His wife, who testified as a defence witness, supported his account, saying she had had sex with him that morning before he left for work.
The court, however, questioned aspects of that explanation, including how the complainant would have known about the condom and directed a witness to the dustbin where it was recovered if it had been wrapped in tissue as Dias claimed.
The magistrate said the defence account raised questions when considered alongside the other evidence presented before the court.
The court also considered the complainant's condition at the time of the alleged incident.
She was undergoing dialysis, and the court noted that disconnecting a patient from the machine could lead to massive bleeding and blood loss.
The magistrate said this made it highly likely, in his view, that the accused could have taken advantage of the complainant's situation.
However, the court stressed that this remained a matter of suspicion, particularly because the complainant had died before she could testify.
It added that suspicion, regardless of how strong, could not form the basis of a criminal conviction.
"Had the complainant lived beyond commencement of the trial, she would have confirmed to the court whether or not she consented to the act. Without the evidence of the complainant, it would be improper to presume that the complainant did not consent to the act of intercourse with the accused inside the hospital in the state in which she was," the magistrate observed.
Chief Magistrate Onyina noted that the prosecution was required to prove beyond reasonable doubt that the complainant had been sexually assaulted.
The court said the absence of the complainant's testimony was significant because consent could not simply be presumed.
The judgment also considered the possibility raised by the evidence that the doctor and complainant may have had an inappropriate relationship, but held that the court could not rely on assumptions or reconstruct evidence that had not been presented at trial.
Ultimately, the court held that the evidence, viewed as a whole, did not safely establish guilt beyond reasonable doubt, leading to the acquittal of the accused person.
