A man who had been convicted of incest has been set free over contradicting testimonies by his daughter and wife.
The man (name withheld) was already serving a life sentence slapped by a magistrate’s court, but Sexually Transmitted Diseases test conducted on him and daughter vindicated him.
He was given his freedom back by the High Court on grounds that the testimonies given to the lower court were doubtful. The main complainant in the case was his daughter, who told the court that her mother had separated with her father after he punished her (mother) through beatings for losing Sh100!
Thus, when she went to her father, asking for upkeep money on different occasion, he allegedly preyed on her and she only reported the matter when it became too much. The case has been in court since 2011 and it was the word of the man against his estranged wife and daughter.
“In the face of these contradictions, I must hold that the learned magistrate misdirected himself on facts to find that the prosecution evidence was credible and consistent,” noted High Court Judge David Ngaah.
The judge ruled: “My own assessment and appreciation of the evidence that was proffered at the trial does not show this credibility or consistency. The prosecution did not discharge the burden of proof beyond all reasonable doubt that the appellant defiled his daughter and therefore committed the offence of incest.”
According to the testimony before the court, the man residing in Laikipia Central had allegedly infected his 14-year-old daughter with gonorrhoea, but the court found it could not have been possible for the infection to occur within days.
Sexually active
A doctor’s report, however, found out that the girl was sexually active. Only that it could not be proved if her father had had his way with her. The court heard that doctors at Nanyuki District Hospital diagnosed her with the infectious disease, but upon testing her father, he was given a clean bill of health.
“More critically, the complainant was diagnosed with gonorrhoea but her father, the appellant, who was examined almost at the same time, was found to be free from any sexually transmitted diseases.
The doctor opined that the appellant could have probably been treated of any such diseases before he was examined; however, there was no evidence at all that the appellant had a history of sexually transmitted diseases.”
Judge Ngaah further wondered: “How is it possible then, that if the appellant was suffering from any sexually transmitted disease, which presumably, he infected the complainant with, he could have been treated of the disease within a period of less than seven days to the extent no trace of such disease or its treatment could be found?”
