Defilement convict set free after judges, say he was framed

A man from Buuri in Meru county is heaving with a sigh of relief after the Court of Appeal quashed his conviction and life sentence for defilement and set him free.

Court of Appeal judges Wanjiru Karanja, Luka Kimaru and Aggrey Muchelule concluded that the man who was convicted in 2018 could have been framed.

The judges in their analysis of the evidence found that both the trial court and the High Court where the man had initially appealed his conviction failed to interrogate claims that the appellant was framed.

The man had been charged with defilement at the Meru magistrate court. He was accused of causing penetration with his seven-year-old daughter. The alleged offence was committed on July 14 and July 16, 2016.

After the trial, the man was convicted and sentenced to life imprisonment on March 5, 2018. His appeal at the High Court in Meru was dismissed by Justice David Majanja on October 17, 2018.

The man then moved to the Court of Appeal in Nyeri where he said the lower courts erred in both law and facts by failing to note that the prosecution witnesses gave hearsay, contradictory and conflicting testimonies.

He said the court failed to note that the expert report did not support the allegations as the expert recited that no spermatozoa was seen inside the girl's genitalia.

He also argued that vital witnesses were not called and the child was only taken to the hospital after seven days of the alleged defilement.

The man whose name is withheld to protect the identity of the minor also told the appellate judges that the trial court failed to give him enough time to prepare his defence, as the defence witnesses were not called.

It was also his case in the appeal that the magistrate failed to note that there was vendetta between the mother of the complainant and the appellant.

It was the prosecution's case that the girl and the man lived in the same house. The mother lived elsewhere in a nearby market centre. 

On the night of July 15, 2016, the prosecution argued that the girl, aged seven at the time was in bed when the man said he was going to fetch water.  

When he returned, he allegedly removed his and her clothes and slept on top of her. He defiled her. He did this on two consecutive days and warned her not to tell anyone. The promise was that she would be bought a big loaf of bread.

The next day in the evening at about 7.50pm, a man met the girl on the way. She had been chased from home by the appellant.

That man who later testified as the second prosecution witness took the girl to his home and contacted her mother. The girl then narrated to them that she had been defiled.

The mother then contacted the child’s headteacher at school and the police who arrested the appellant.

A week later, the girl was taken to Meru General Hospital. When examined, it was found that her vagina was “okay”. It had no bruises but the hymen was broken. There were numerous blood and puss cells, but no spermatozoa were detected.

In his defence testimony, the appellant said he had been framed. He stated that when he married the girl's mother, the minor had already been born.

While they were living together, he discovered that she had another child. As if this was not enough, one day he found her in his house with another man. That is when he chased her. There was a dispute that escalated up to the children’s office over the girl who was allegedly defiled and where she should stay.

In the end, she was staying with another person but the appellant was responsible for her feeding.

The girl's mother later stole the child from the guardian causing the appellant to look for her for two weeks. The matter ended up at the children’s office again.

Justice Majanja while confirming the conviction at the High Court at Meru observed that the medical evidence tended to confirm the fact of penetration.

The appellant attacked the medical evidence as insufficient, citing the fact that the child was seen one week after the incident and the only evidence of penetration was numerous pus and blood calls.

In the case before the Court of Appeal, the judges sought to determine whether, on the proper re-examination of the evidence before the trial court, the learned judge’s finding that the charge had been proved beyond reasonable doubt was sustainable.

The judges also considered the complaint that there was bad blood between the appellant and the girl's mother and whether it was possible that he had been framed.

The magistrate in dismissing the appellant’s defence during the trial had observed that he had not called the persons he had mentioned to come to support his testimony.

The court then went on to say:-“I do find the accused person's defence not merited at all. In grievances case like this of defilement where the sentence is severe the accused person was if any supposed to exonerate himself if indeed, he was innocent as claimed by himself”.

The Court of Appeal found this observation to be wrong.

"This was complete misdirection on the part of the trial court. It was clear that the appellant’s defence was discounted because he had not called witnesses to support it. It is also clear that the trial court expected the appellant to call evidence to exonerate himself. This is why he had been convicted," the judges noted.

They argued that doing so would twist the procedure was an accused in a criminal case is convicted on the strength of the prosecution case, and not on the weakness of the defence case.

The burden is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt, and that burden never shifts to the accused. Where the accused person raises a defence, it must be weighed against the prosecution case and can only be dismissed if found to be incredible, the Court of Appeal said.

"Unfortunately, the learned judge did not pick these misdirections and deal with them, to be able to satisfy himself that, despite them, the appellant had been convicted on safe evidence," judges Karanja, Kimaru and Muchelule said in their judgment delivered on September 6, 2024.

On the claim of being framed and whether there was actual penetration during the alleged defilement, the judges noted that the claim was never interrogated by the trial court.

They also found the High Court at fault for not dealing with the matter and asking why the appellant and the child's mother were staying apart if they were a couple.

"There was an outstanding case between him and the girl's mother over the minor which the children’s office was dealing with. Both the courts did not interrogate this. It is evident from the record that the appellant intended to call the chief and the children’s officer as witnesses in his defence," the appellate judges noted.

"The summons had been issued through the police. So, even as the trial court was blaming the appellant for not calling witnesses to exonerate himself, the record showed otherwise."

The judges concluded that the appellant’s claim that he had been framed should have been considered because "there was certainly bad blood, a strained relationship, between him and the child's mother".

The court concluded that there was reason to frame the man, citing the fact that the victim was medically examined a week after the alleged incidents of defilement which the judges said raises suspicion and supports the appellant’s contention that he may have been framed.

The claim by the appellant that there was insufficient evidence to prove defilement should have been considered bearing in mind this strained relationship, the court said.

"Yes, the child’s hymen was broken. But a sexual assault of a penetrative nature, given her age and the appellant’s age, would have left the child with obvious injuries to her genitalia.  Even if the examination was after a week, there would have been found scars or healing wounds to the genitalia."

"In conclusion, we find that the appellant was not convicted on safe evidence. We allow the appeal, quash the conviction and sentence and order the appellant be set at liberty unless he is otherwise lawfully held," the Court of Appeal ruled.