The male military nurse who was sacked for raping a pregnant woman has lost his appeal to be reinstated in the military.
Johnson Njogu had sued the Chief of General Staff and the Attorney General, claiming he was unfairly dismissed from the disciplined forces following the claims of rape.
The Court of Appeal however agreed with the earlier ruling by the High Court. The court maintained that Njogu was given a fair chance to defend himself against the claims during the trial.
Njogu, a sergeant, was working as a community health nurse at Gilgil Regional Hospital before the case. His work at the hospital included examining ante-natal mothers in order to establish whether they were experiencing any problems during pregnancy and to offer treatment.
The court heard that on December 14, 2008, a pregnant woman came for routine check-up at the facility.
After registration, she was ushered into the examination room and told to lie on the bed for examination by the accused person.
It was claimed that in the course of the examination, the serviceman tricked her that he would insert vaginal tablets using a dummy, but he instead inserted his manhood instead.
He was arrested on the same day after a complaint was lodged, and tried before the commanding officer at the hospital.
Njogu claimed he should have been tried by a court martial and not the commanding officer. He complained that he was condemned unheard, was not provided with witnesses’ statement, and that his accuser did not appear to give evidence in court.
He lost at the High Court and opted for the Court of Appeal, where he argued that he was not given enough time to prepare a defence, and that another nursing officer was not called to testify about the procedures used in conducting examinations on pregnant women.
He argued that his boss succumbed to pressure from other superiors to kick him out of work after serving in the military for 29 years. The court heard that he had never been accused of any sexual offence before.
In reply, Colonel Richard Nyakundi denied being openly biased against his junior, adding that he relied on evidence before him to make a judgement.
Justice Roslyn Nambuye and Jamilla Mohamed found that the appeal before them could not hold water as rape could equally be tried under professional misconduct.
“Though we have no doubt this offence too flowed from the alleged sexual assault on a patient, its framing leaned towards professional misconduct on the part of the appellant as a member of the disciplined forces in the cause of duty. There is no requirement that one offence cannot sustain summary proceedings before a commanding officer,” the judges ruled.