A Makueni court has set free a man serving a 20-year jail term for allegedly defiling his daughter.
It appears the daughter may have lied in court to frame her dad.
Justice George Dulu released JM ruling that the minor’s evidence is not believable.
JM was charged in 2019 over the alleged defilement on September 25 of the same year.
The magistrate found him guilty of the offence and sentenced him to 20 years’ imprisonment.
However, in his appeal, JM told court the charges were not true and were instigated against him because he had remarried.
The court noted that the evidence regarding the incident is that of the daughter and nobody else testified to this.
“Such evidence of a single victim witness of a sexual offence, is saved by the proviso to section 124 of the Evidence Act (Cap 80), in that it does not require to be corroborated to sustain a conviction,” the court said.
However, the court said even though she gave implicating evidence against her father on the incident, her evidence was not believable because of what her dad had alleged which was challenged.
“With the sworn defence of the appellant on record which was not challenged by cross examination, I find that the evidence of the complainant was not believable,” the judge said.
Justice Dulu said from the totality on record it was highly probable in the circumstances of the case that the narrative of defilement was fed to the daughter by the mother.
“The benefit of the doubt has to be given to the appellant. In my view therefore, the alleged attempt to defile the complainant was not proved by the prosecution beyond reasonable doubt,” the court held.
Justice Dulu also said from the evidence he found that there was no proof of attempted defilement on that day and JM was not the culprit as alleged.
“I note also that from the evidence on record, the appellant was in fact so shocked by the allegation against him that he even threatened to commit suicide, which is indeed the reaction of a person who felt highly offended by a serious false allegation,” the court said.
Consequently the court allowed the appeal and quashed the conviction further setting aside the 20-year sentence.
“I order that the appellant be set at liberty, unless otherwise lawfully held,” justice Dulu ordered.
(Edited by Bilha Makokha)
