Malik Mohamed Musa is a poster boy for a Swahili saying that a rat trap ensnares the guilty and the innocent.
Mohamed was jailed in 2017 for 18 years for defiling a 16-year-old girl.
The victim testified in court that they had consensual sex twice as girlfriend and boyfriend, and that she had never been intimate with any other man.
At the time of the case she was pregnant, and claimed Mohammed was responsible.
The testimony of the girl, identified in court as ZI, the medical report by the doctors that she had been defiled and the pregnancy condemned the man.
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A magistrates court in Hola sentenced him to 18 years in jail after finding the State’s evidence overwhelmingly pointed towards his guilt.
However, three years into his jail term, a DNA test on the minor confirmed otherwise - he was not the father.
Justice Reuben Nyakundi freed him after finding that the teen had been untruthful to the lower court.
He pointed out that although she had claimed that Mohammed was her only boyfriend between 2014 and 2016, DNA test told a different story.
According to the judge, the charges against the man were unclear since the girl had claimed they had had sex several times.
He was of the view that the different instances ought to have attracted separate charges, and also had specific information to enable Mohammed to either deny or admit the accusations levelled against him.
“In this case, the charge drawn did not give the appellant precise information as to the offence alleged against him. This did cause him an embarrassment in his defence given the undisputed fact that the victim had other ‘partners’ she engaged in sexual intercourse with. That is manifest in the DNA test report,” the judge ruled.
In the case, Mohammed is claimed to have defiled ZI on or about August and September 2016 in Tana River Sub-county.
According to the girl, she first met Mohammed in 2014 and had been with him until 2016 when she became pregnant.
ZI claimed that she would lie to her parents and siblings that she was going to fetch firewood, but would instead go and meet Mohammed.
She claimed that their regular meeting point was a thicket. The girl realised that she was pregnant on January 2017.
The court heard that after she became pregnant, Mohammed went under and could not be reached on his mobile phone.
Her uncle and younger sister gave their testimonies supporting the defilement charges. The man however denied having any sexual intercourse with her.
The Director of Public Prosecutions conceded that the magistrates court had erred by failing to consider the DNA test in order to ascertain whether the girl was truthful.
The judge faulted the magistrates court, saying it ought to have gone further than the testimony by the minor.
“That being so, there was evidence before the trial court which it could accept on these medical facts to question whether the victim is a witness of truth. Under this ground I do not think that the question of identification and penetration was clearly investigated,” he ruled.