The High Court has freed a man who had been jailed for life over claims he raped an 87-year-old woman after finding that he was insane.
At the same time, Justice Kipkoech Limo, in his verdict released on December 6, last year, found that it was impossible for the man, codenamed PW, to rape the victim, codenamed KK, as the woman never identified nor saw him.
While overturning the decision of a magistrate’s court which handed out the life sentence against the man, the judge observed that PW was not placed at the crime scene.
He ruled that the evidence presented before the court by KK was not sufficient.
Justice Limo said the magistrate ought to have considered that PW couldn't plead to the charges in the first place.
In his appeal, PW denied committing the act. He argued that despite a medical examination finding that he was insane when he stood trial, the magistrate's court still went ahead and jailed him. He would only be released at the President’s pleasure.
The judge heard that PW visited the Mathari Teaching and Referral Hospital several times for treatment and a report by one Dr A.K Gitari indicated that he was unfit to plead to the charges against him.
PW was accused of sneaking into the home of KK at night, and raped her before fleeing.
KK said she was sleeping when PW sneaked into her bed and held her by the neck before raping her.
She testified that on the material day, she did not close her door when going to bed. She told the court that her servant, identified in court papers as RK, did not wake her up to close the door.
In her testimony, RK said that on the material day, she left KK’s home at 10:40pm without waking her up to close the door.
The following day, when she reported for work, she found blood on the floor in KK’s room. Her boss told her that PW had sexually assaulted her.
In her testimony, KK said the room was lit and that is how she was able to identify PW.
She said she bled a lot after the ordeal. RK took her to the Nguni Dispensary and later Mwingi District Hospital.
The matter was reported at the Nguni Police Post. KK told the police that she knew PW since he was a neighbour.
RK said she is the one who reported the matter to the police and that a police officer accompanied her when KK was taken to the hospital.
She said that PW fled to Mombasa, and stayed there for three months, after the incident. He later returned and was arrested.
Dr Ndirangu Joram, who testified on behalf of his colleague Dr Elias Wakholi, told the court that he knew Dr Wakholi and that he was familiar with his handwriting.
According to the medical report produced in court, KK had injuries that were four days old and had no injuries on her head, upper neck or lower limbs.
He said that KK had a blood-stained discharge and that she had an infection and was of the opinion that she had been raped.
Another medical officer, Benson Mulwa, who testified on behalf of his colleague who worked at the Nguni Dispensary where KK was first taken, said that from the medical notes taken by his colleague, the complainant was bleeding and her clothes were stained with blood.
He added that she had a big tear on the right side of her vaginal opening and that she experienced pain when passing urine.
Josephine Njeri, a police officer based at the Nguni Police Post, said that a report was made that KK, 87, had been raped on January 31, 2016, and that she knew the culprit.
Karen Naitore, a clinician at the Mwingi District Hospital, testified that she attended to KK. She noted that her clothes had blood stains and she had bruises on her genitals as well as an infection.
In his appeal, he told the court that the identification as the perpetrator of the crime was doubtful since the offence was committed at night and that there was no way KK would have identified him since it was at night and also because of her age.
He argued that the medical examination on KK was conducted 96 hours after the incident and that laboratory results showed that she did not have spermatozoa. He said he was being framed for the crime.
He also argued that he could not follow the proceedings of the magistrate's court due to his mental problem.
Justice Limo noted that it was possible that when PW took a plea on April 27, 2016, he may not have been fit to do so. This was because medical reports from the Mathari Hospital show he was under medication as late as May 6, 2018.
“The trial court’s verdict of guilty at the end of the trial, shows the appellant may have been exposed to unfair trial because he was mentally unstable,” said Justice Limo.
He also said the prosecution had not produced the source of light that KK relied on to identify PW.
According to the judge, the failure of the investigating officer to visit the scene and instead have her colleagues do it on her behalf only weakened the case.
Judge said none of the officers was called to testify which would have led to the identification of the source of light relied upon by KK.
The judge said that the question of mistaken identity raised by PW could not be ruled out since identification by KK was not free from the possibility of errors.
Justice Limo noted that KK said that PW did not talk to her during the ordeal and therefore the question of recognition by voice did not arise.