Kiambu High court has quashed a sentence of 20 years imprisonment for a man who had been imprisoned by a Thika Court in 2018 for allegedly defilement of a 12 year old.
In her judgement Lady Justice Esther Maina said the prosecution had omitted to bond a crucial witness who allegedly stood outside the house where the complainant was defiled.
She also faulted the prosecution for not conducting an identification parade which would have helped the complainant to positively identify her defiler and that her evidence and that of her mothers was full of inconsistencies and contradictions.
Kiseve Martin Jackson had been charged with defilement of the minor on diverse dates between 13th June and 21st June 2016 at Tumaini area in Juja location, within Kiambu County contrary to section Section 8(1) as read with Section 8(3) of the Sexual Offences Act of 2006.
He faced an alternative count of touching the private parts of the minor on the same dates contrary to section 11 (1) of the same act.
At the trial 4 witnesses testified against the accused who then testified on oath and maintained his innocence.
However, after evaluating the evidence the trial magistrate Ms. Grace Omodho (SRM) found the appellant guilty on the main charge, convicted him and sentenced him to serve 20 years imprisonment on 23rd July 2018.
Being aggrieved by the entire judgement,conviction and sentence, he appealed on grounds that the charge sheet did not disclose an offence as it did not state the alleged act was unlawful .He also stated that the identification evidence was improperly gathered by the police and wrongly accepted by the trial court.
The appellant also noted that the trial court erred and misdirected itself by concluding that the complainant was telling the truth despite the fact she told no one of the assault on 13th June 2016. He said her evidence was exaggerated as the appellant was not arrested until 24th June 2016 and thus she was taken to hospital a week later.
He was also unhappy that the case was not proved beyond reasonable doubt as penile penetration was not adequately proved. He averred that clinical findings were not sufficient corroboration and that a crucial witness was not bonded to testify and that there were numerous inconsistencies and collaboration in her evidence and that of her mother who testified as the second prosecution witness( PW2)
In her analysis after hearing the appeal during the September 2020 Service Week, Justice Maina regretted that the failure to call a witness named Rose was faulty. “ It is my finding that Rose was a crucial witness. The complainant alleged to have gone to the appellant’s house on several occasions with the said Rose and also claimed that the said Rose was standing outside the appellant’s house as he defiled her” the Judge noted.
Another reason for allowing the appeal to succeed was the inconsistencies of the evidence and that of her mother. “ The failure to conduct an Identification parade left gaps in the prosecution’s case which gives rise to some reasonable doubt whose benefit I must give to the appellant”, she stated while setting him free forthwith.
The judgement was delivered by Lady Justice Christine Meoli the then duty Judge who has since been transferred to Milimani Law Court. Lady Justice Maina is duty Judge for Nyamira High court
By Lydia Shiloya