A man living with HIV will remain in jail for the rest of his life after the Court of Appeal declined to set aside his conviction for defiling his daughter six years ago.
A magistrate's court established that the man defiled his 10-year-old daughter on September 25, 2014, at Karatina in Gikumari, Ruiru, and subsequently committed him to life imprisonment.
The man unsuccessfully appealed against the ruling at the High Court and thereafter moved to the appellate court.
On July 24, Justices Martha Koome, Daniel Musinga and Jamila Mohammed dismissed the appeal, saying that incest was proved.
“We have no basis of faulting the learned judge for upholding the appellant’s conviction. The sentence to life imprisonment was properly founded in law. The appeal against conviction must therefore fail,” they ruled.
They noted that the convict had in mitigation told the trial court that he is HIV. The age of the complainant was proved to be under 18 years.
The girl's evidence on how her father defiled her was corroborated by medical examination.
“The young girl’s hymen was missing and she had vaginal discharge. The two ingredients of the offence of incest were therefore proved," the judges said.
The man, whose identity is withheld to protect the complainant, was first convicted of incest by the chief magistrate's court in Thika.
He appealed against the ruling at the High Court, which upheld the lower court's verdict.
In her testimony, the girl told the court that her mother was away and she had left her and the other children with their father.
At 9pm on the material day, the father moved her to his bed where he committed the offence.
The following morning, she disclosed to her teacher what had happened and the teacher reported the incident to the Children’s Office in Ruiru.
A report was made to the police and the man was arrested.
A medical examination by clinical officer S.K. of Ruiru sub-district hospital showed that the complainant’s hymen was missing and she had vaginal discharge.
The examination showed that the girl had been subjected to sexual violence several times.
The man had denied the offence. In the appeal, he claimed there were inconsistences and contradictions in the prosecution evidence and faulted the High Court judge for affirming the conviction premised on "faulty medical evidence".
- mwaniki fm