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Man framed for defiling stepdaughter set free

Judge rules evidence did not support accounts of witnesses and there was no conclusive proof of penetration

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by CAROLYNE KUBWA

News27 April 2020 - 20:00
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In Summary


  • Judge says trial magistrate failed to conduct proper procedures and did not comply with Evidence Act.
  • Matheka says evidence before the trial magistrate was contradictory and inconsistent.
Accused father set free

A father sentenced to life imprisonment after being set up by his wife on claims that he defiled his stepdaughter in Molo has been set free by the High Court.

Charles (not his real name) was sentenced to serve a life term in 2018 after he was found guilty of defiling his nine-year-old stepdaughter.

In a judgement delivered on April 23 by Justice Mumbua Matheka, the judge ruled that the evidence placed before the trial court did not support the accounts of witnesses and there was no conclusive proof of penetration. 

Matheka came to the conclusion that the trial magistrate failed to conduct proper procedures of the trial and did not comply with provisions of the Evidence Act.

 “The role of the police is to receive the reports and investigate every possible angle and to tie up the loose ends to ensure no gaps. The prosecution ought not to present any case to court with loose ends or obvious gaps such as this. Sexual offences are not mathematical equations,” the judge said.

Matheka said the prosecution chose to present Charles as the abusive stepfather but did not provide the evidence.

“Overall, the corpus of evidence before the trial magistrate was contradictory, inconsistent and not worthy of credit to warrant a conviction. The appeal succeeds. The conviction is quashed. The sentence set aside. The appellant is to be set at liberty unless otherwise legally held,” justice Matheka ruled.

The prosecution had stated that Charles defiled the complainant three times.

She testified that the incident for which Charles was tried happened on February 24, 2017, at 1pm. 

 

The girl said she was washing dishes and her siblings had gone to the river when Charles called her into the house, told her to remove her trousers and bend.

 
 

 He told her not to make any noise and promised to buy her new clothes and that she should not tell anyone. 

The girl said after he finished defiling her, the man asked her to go and continue washing the dishes.

She said he stopped defiling her after he saw her brother approaching from the river but Charles told him to go back to the river and proceeded to defile her.

She testified that on February 26, 2017, she was feeling pain in her private parts and that was when she told her mother that her father had defiled her.

On cross-examination, the girl told the court that the appellant was not her real father and that her mother had given birth to her before she got married to him.  She said she told her brother that Charles had defiled her. 

The minor’s brother who was 10 years old testified that he came from the river at about 1pm.  He found his sister washing dishes and crying.  He asked her but she did not tell him why she was crying.

The following day, she told him that their father had defiled her and that she was feeling pain in her private parts.

He testified that the girl told him not to tell anyone or she would be killed.  He informed their mother who took her to hospital.  On cross-examination, he said he was the one who told their mother about the incident because when it happened she was out of town.

The mother's testimony was that on February 26, 2017, she sent the children to the river while she was washing clothes.  The brother to the minor came and told her that the girl had told him that she was defiled by Charles. 

 She said she examined the complainant but could “not see her private parts” but the complainant was in pain.  She took her to hospital where she was told that the complainant had a ruptured hymen and bruised anus. 

She said the week before the incident he had attempted to defile her.

According to a P3 Form filled on February 28, 2017, the girl's anal region was examined and found to be tender, painful and inflamed and the injury was three days old caused by a penis. 

In his defence, Charles said that the basis of the charges were matrimonial issues he had with his wife. 

Edited by Henry Makori


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