On the 27th of July 2018, Mr. and Mrs. J*, the parents of now seven-year-old *Alika, walked into the warm morning sunshine outside the Milimani law courts. If only briefly, both their emotionless masks slipped, revealing shy smiles. It had been three years since the start of a case, pitting them against their daughter. They were accused of perpetrating grievous bodily harm against her, a charge carrying a maximum life-imprisonment sentence. They allegedly abused her since she was at least 10-months old. Mr. and Mrs. J* were free; it would appear, chiefly because an investigator from the Department of Criminal Investigations had lost what seemed, to this reporter, like a case that could not be lost.
The first time the mention of a case involving the then five-year-old Alika was in the children’s court, in late 2015. By this time, the young girl had been removed from the custody of her parents by the state, and placed in the custody of the *Mehta’s. She had undergone a battery of tests and a short stay at the Agha Khan Hospital. Dr. Abdil Waris, a paediatric pulmonologist, first saw Alika in June that year. On the request by Mr. Mehta, he would run a series of tests on the child, which included a full body x-ray. He would then ask a battery of eight specialists to perform different tests on Alika, to establish whether she indeed had been abused.
Her Injuries were non-Accidental
The Ear, nose and throat review showed an “unusual and unexplained deviation of (her) nasal septum” – meaning that the wall between her nasal passages had moved to one side.
The ophthalmologist found temporal optic atrophy (partial damage to the nerve fibres in the eye) “which could be secondary to old head trauma” (an injury to the head). The dermatologist found signs of skin lesions, which were “not a result of any allergic reaction.”
Alika had widespread cavities caused by a “lack of dental hygiene and neglect”.
She also had a fracture on her right hand shoulder. She had multiple bruises of different ages on her hips and feet. A child psychiatrist, Dr. Josephine Omondi, who interviewed Alika three times – before and after she was removed from her parent’s custody stated, “She suffered from post-traumatic stress disorder. ”
Alika had gone through all of this before her fifth birthday, while she was in the care of her parents.
She also had a five centimeter-long fracture on the left side of her skull. This fracture, which Alika sustained at just 10 months of age, was a crucial injury to have looked into. Her parents, Mr. and Mrs. J claim that she fell off the sofa, when they took her to the MP Shah hospital on the 15th of March 2011. According to court documents, the CT Scan that was taken of Alika’s skull on that day, and MRI scan taken in India on October the 11th 2011 was presented to the court by Alika’s parents. They may show the first signs of her abuse. John Moses, A UK –based forensic reconstruction expert who was hired by Mr. Mehta, prepared videos based on these scans, showing different scenarios through which the fracture could have come about.
One scenario shows Alika falling off the sofa and hitting her head. This is what Alika’s parents say happened. But according to the reconstruction, her arms are tucked in by her sides, and she falls knees first to the ground.
His assessment was that the injury she sustained could not have been caused by a fall at that height, given that there were no injuries to her knees of forearms. Another video shows what Moses believes was the most likely scenario. Someone standing over strikes her with a blunt object.
The slant of the fracture, as well as the fact that the force of impact splintered parts of Alika’s skull were his reasons for concluding that her injury was “non-accidental”. Dr. Waris agreed with this assertion.
The court found the investigating officer to be untruthful
The evidence in court was of such nature that Police surgeon, Dr. Maundu, who also saw Alika, recommended that the charges against Alika’s parents, Mr. and Mrs. *J, be amended from grievous bodily harm, to attempted murder. That didn’t happen.
In her ruling, Magistrate Hellen Onkwani made this statement, upon which the case would eventually be dismissed: “ Indeed, the child was injured, but how the injuries were caused, this court cannot be able to determine.”
Justice Onkwani laid the blame for the collapse of this case squarely at the feet of the investigating officer in the case, Mr. Frederick Mong’are.
“The court found the investigating officer to be untruthful. He did not interview the parents of the child as they had been charged. He did not visit the scene of the crime. He did not speak with the neighbours. He spoke to the child through experts, that the child was being abused by close family relatives,” she said in her ruling.
“…He did not summon the doctors to testify. He did not speak to the nanny at the accused’s home,” Justice Onkwani summarized.
This was a scathing attack on an officer serving in one of Kenya’s newest criminal investigations units, one that hitherto had recorded successes in its investigation of child abuse cases in Gilgil and Mombasa.
Speaking on phone, the head of the unit, Senior Suprintenant Grace Ndirangu said that she hadn’t seen the ruling, and was waiting for it from the prosecutor. When this reporter volunteered to read the verbatim quote of the ruling to her, Ndirangu declined to hear it.
“You are not the prosecutor,” she said.
Calls to George Kinoti, the Director of Criminal Investigations went unanswered. Kinoti had not responded to an interview request by the time this article was published.
We began facing threats from unknown persons
“ It has been a huge miscarriage of justice, and I strongly believe that ethics have been compromised in this case. Huge amounts of facts have been set aside, and the case was thrown out on the mistakes of one person.” Mr. Mehta’s reaction to the ruling. He sounded deflated in the immediate wake of the judgement, but when we spoke, hours before the publishing of this story, he was rattling off the laundry list of things he needed to do to file an appeal. Mehta speech is akin to a machine gun, interrupted by bursts of a chesty cough that he has had since he was a child, when an infection left his lungs scarred. A question about the past three years spent in court slows him down.
“It has been a total nightmare for the last two years. We took (custody of) the child in July (2015). We knew that Alika had a fracture but we didn’t know that it was serious, until the forensic reconstruction. (Moses) told us that we needed to get the fracture fixed or Alika could be in serious trouble. So in 2016, we spent one month convincing the judge that Alika needed to be flown out of the country for specialized care. Her parents didn’t object to this. We spent the better part of May in 2016 organising surgery for Alika in India to fix the fracture.
Mehta’s taking custody of Alika set him on a collision course with members of the Oshwal Community. We reported about the conflicts in the second part of our series on Alika’s ordeal. According to Mehta, things went from bad to worse in November 2016.
“We began facing threats from unknown persons, to the extent that at one point I had to fly my wife and daughters out of the country and go into hiding locally with Alika. This was after my father in-law received a letter in the post, telling him to tell me that I should be careful, saying “accidents can happen on bad roads,” that I should watch out.”
The memory of those threats are forced to the back of his mind by more urgent concerns:
“ My next course of action is to safeguard the custody of the child. The moment the child is out of my custody I have no locus in this case.”
Mehta is filing an appeal against Justice Onkwani’s judgement exactly one week after it was read. A short break between rounds. Mehta says he hasn’t punched himself out of energy yet. With a ruling in their favour, it would seem that Alika’s parents haven’t either.