[2017] KEHC 8087 (KLR)
The court found that the prosecution failed to prove the offence of incest beyond reasonable doubt. The medical evidence did not support the allegations, as there were no physical injuries or fresh signs of defilement on the minor, which would be expected in such circumstances. The evidence of the complainant and...
Source-derived case information.
- Citation
- [2017] KEHC 8087 (KLR)
- Parties
- Appellant: D K N; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 119 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- HK Chemitei
- Legal Topics
- Sexual Offences, Incest, Evidence Evaluation, Medical Examination, Credibility of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
D K N
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of incest beyond reasonable doubt.
- 2 Whether the medical evidence corroborated the allegations of defilement.
- 3 Whether the evidence of the complainant and her mother was credible and consistent.
Ratio Decidendi
The court found that the prosecution failed to prove the offence of incest beyond reasonable doubt. The medical evidence did not support the allegations, as there were no physical injuries or fresh signs of defilement on the minor, which would be expected in such circumstances. The evidence of the complainant and her mother was inconsistent and uncorroborated, with unexplained delays in seeking medical attention and reporting the incident. The court also noted the possibility of ulterior motives due to marital discord. In light of these deficiencies, the court held that the conviction was unsafe and allowed the appeal, setting aside the conviction and sentence.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction and sentence are set aside.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HGH COURT OF KENYA IN KITALE
Criminal Appeal No. 119 Of 2014
(Being an appeal arising from the Judgment of Kitale Resident Magistrate C.N. Mugo delivered on 30/10/2014 in Criminal Case NO. 1242 of 2013)
D K N …................................................................................APPELLANT
VERSUS
REPUBLIC .......................................................................RESPONDENT
JUDGMENT
The appellant was charged with the offence of Incest contrary to Section 20(1) of the Sexual offences Act No. 3 of 2006. The particulars of the offence were that on the 31st day of May 2013 at [particulars withheld] within Trans Nzoia County being a male person intentionally caused his penis to penetrate the vagina of M N K a child aged 8 years a female person who was to his knowledge his half daughter.
The appellant was convicted and sentenced to 20 years imprisonment hence this appeal.
The evidence at the trial court were that the minor who was aged 8 years old was left behind by her mother PW2 with the appellant early in the morning at around 8 am to fetch water on 31/8/2013. The appellant then proceeded to defile the minor and was caught in the act by PW2. PW1 the minor stated that she felt pain. The mother PW2 then took her to Kitale District hospital where she was treated and age assessment done.
PW2 stated that she found the appellant in the act and she could not scream as he would beat her just as he had been doing. He reported the matter at the chief's office and the appellant was arrested.
PW3 James Njoroge Wawerua village elder said that on 31/5/2013 he met an assistant chief one Susan who told him of the incident. He went to PW2 home and found the child and with her. He took them to Kitale District Hospital. He also organised for the arrest of the appellant.
PW4 Kirwa Labbat the clinical officer produced the P3 form which showed that there was “no physical injury, on genital examination no bruises on labia, the hymen was already torn, not fresh, no vaginal discharge, no spermatozoa …..”
PW5 Sergent Josephine Nabwiretestified on behalf of the investigating officer William Andai who carried out investigations and charged the appellant . She also produced the age assessment report by Dr Ndege.
When put on his defence the appellant denied the charge. In his unsworn testimony he said that PW2 his wife had a love affair with another man and when he confronted her she threatened him with unspecified consequences. A week thereafter the whole incident occurred. He said that PW1 was beaten by her so that she could testify against him.
Analysis and Determination
The state conceded to this appeal. I have perused both parties submissions, I find the concession by the respondent proper for the following reasons.
First of all the child on being examined was found to have no physical injury, no bruise on labia and the hymen was missing and was not fresh and no discharge and no spermatozoa. Clearly this can't be of an 8 year old child. Even if the hymen was torn there ought to have been serious injuries. Infact there was no indication by the child that she suffered any injuries. The medics who examined her in the first instance ought to have found evidence of bruises.
Further the evidence on record by PW1 and PW2 does not corroborate what she told the hospital staff, namely that the appellant had been defiling the minor severally. Surely what was difficult in the complaint although a minor explaining to the trial court that she had earlier on been defiled by the appellant. More importantly why would the mother keep quite for such a long time??
In any case why would PW2 take the child for treatment on 3/6/2013 yet the incident occurred on 31/5/2013. She did not offer any explanation at all raising suspicion and therefore buttressing the appellant's defence that there was bad blood between her and him over some marital infidelity.
In the premise I shall allow the appeal and set free the appellant unless lawfully held.
Delivered this 25th day of January 2017.
________________
H.K. CHEMITEI
JUDGE
In the presence of:
Kakoi for state
Appellant – present
Kirong – Court Assistant