- The girl codenamed CW, then 12 years old, told the court that she was asleep when she was roused by some pain and found her uncle penetrating her vagina.
- When she was taken to the hospital, she however told the doctor that her uncle had penetrated her anus.
Image: FILE
SA was convicted for a crime allegedly committed almost five years ago, only for him to be released after the court later scrutinised the case and found that the witness was unreliable.
In the case, the man was accused of defiling his niece on April 6, 2019, in the Junda area of Kisauni in Mombasa.
He was arrested and arraigned at Shanzu Law Courts.
The girl codenamed CW, then 12 years old, told the court that she was asleep when she was roused by some pain.
She woke up only to find her uncle's private parts inside her vagina.
When she tried resisting, he threatened her with dire consequences in the case that she reported the defilement.
CW, however, reported the incident and was taken to the hospital where she told the doctor that her uncle had penetrated her anus.
The doctor's examination found that the minor had lacerations around the anal orifice.
When put on defence, the man however denied having committed the offence.
The trial court found him guilty and sentenced him to 20 years' imprisonment.
Aggrieved with the decision of the court, SA filed an appeal against the conviction and sentencing at the High Court in Mombasa.
Represented by Advocate Chacha Mwita, he argued that the trial magistrate was wrong for not appreciating that the prosecution case was not proved beyond reasonable doubt.
He added that the magistrate had faulted by failing to consider that the prosecution failed to bring sufficient evidence within a reasonable time frame to prove their case beyond reasonable doubt.
The state did not file any grounds of opposition or submissions.
Upon going through the evidence submitted at the trial court, Justice Kiarie Waweru found that the complainant, CW, had given two contradicting versions regarding penetration.
The judge cited the Court of Appeal in a previous case where it said, "The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression on the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence".
Owing to the finding, Justice Kiarie stated that it was unsafe to rely on CW.
He added that SA's conviction was unsafe and quashed it.
"The conviction was unsafe. The same is quashed and the sentence is set aside. The appellant is set at liberty unless otherwise lawfully held," Justice Kiarie said in a judgement delivered on January 12, 2024.