Man escapes 50-year jail term over defilement after appeal

A 45-year-old man has been saved from serving 50 years in jail over claims he defiled his daughter after the High Court in Nakuru quashed the sentence.

The man, referred to in court documents as WK, had been accused of defiling the girl, CC, on September 25, 2015. The minor was 13-years-old then.

WK was handed the sentence on October 9, 2018, by Molo resident magistrate Samuel Soita. He appealed the decision on October 16, the same year.

And on Thursday, High Court judge Hillary Chemitei ruled that there was no evidence the girl was defiled, not even by her father, on the stated date.

The judge noted the minor herself told the court her father never defiled her. Justice Chemitei noted that the evidence tendered before the court dwelt on alleged defilement that was said to have happened on another date. 

“The minor testified that her father went to her bed, told her to remove her clothes but her mother came before he could do anything to her,” said the judge.

The judge noted the minor's testimony was corroborated by a medical report by one Dr Joel Mokomba which indicated there was no penetration, hence no defilement.

The judge wondered why the minor gave unsworn evidence before the court. He said the unsworn testimony made the case and evidence too weak to warrant a conviction.

“Was defilement proven? The evidence of the minor was unsworn, meaning it ought to have been corroborated which was not the case. Her father didn't defile her because her mother appeared at the scene,” said Chemitei.

The judge said there was no evidence showing the date when the minor was allegedly defiled.

The court noted that WK’s wife MM was stood down while giving evidence after she was declared a hostile witness.

Justice Chemitei noted that MM had been accused of trying to protect her husband from prosecution.

He ruled that MM made the case even harder for the prosecution since she was the one who found her husband with her daughter and called the neighbours.

"If the wife was shielding the appellant (WK), then independent witnesses who responded to the wife’s distress call should have been called in to tighten the evidence,” he said.

The judge added: “The appellant is set free unless otherwise lawfully held.”

WK had been accused of defiling his daughter at Mzalendo in Kuresoi, Nakuru County.

He faced a second count of committing an indecent act by touching her privates.

The minor testified that she was at home with her father while her mother was at the farm. Her siblings were away.

She said her father found her in her bed but didn’t do anything to her. However, she claimed he had defiled her on a different day. She claimed she did not tell her mother or anybody about it after WK had reportedly threatened to kill her if she did.

Constable Milton Otenya, the investigating officer, had testified that WK was found by members of the public defiling his daughter.

At the same time, Otenya accused MM of obstructing investigations by defending her husband and moving away with her daughter during the pendency of the case. MM was consequently charged with conspiracy and the case is still pending.

WK denied the charges in his unsworn testimony. He said he was working at a quarry until 6pm on the day he is accused of attacking his daughter.

“I passed by a bar and bought alcohol but Nyumba Kumi people came and assaulted me before I was arrested,” he said.