Stephen Agunda was handed 20 years in jail for defiling his 12-year old niece in 2019.
But as fate had it, the minor's inconsistency in detailing the incident saved him.
A magistrate's court convicted Agunda because the evidence showed that he defiled his niece when she was asleep.
C.W told the court that she was woken from her sleep up by a searing pain caused by the uncle committing the beastly act on her.
But the man appealed the conviction and sentence at the High court and was set free.
Part of his appellate grounds was that the prosecution did not call crucial witnesses to corroborate the charge against him.
He said the evidence was inconsistent and contradicted prosecution's theory.
The judge re-analysed the proceedings file, including evidence and flagged out the inconsistencies in the complainant’s testimony.
The testimony on record showed the complainant, C.W, said she was roused from her sleep by the pain of her uncle defiling her.
She said the defilement was through her genitalia and the man threatened her with dire consequences if she reported.
But at the same time, the doctor’s report filed as evidence showed she was defiled through the anal region.
“When she was examined by Dr Nafifa Seif, she said she had been penetrated by her uncle per anus. The findings made were that she had lacerations around the anal orifice,” the court document reads.
The judge found the complainant's account ambiguous and conflicting.
According to the judge, the minor did not say the man defiled her through both her genitals and the anal region, only insisted on her genitals.
The young girl’s inconsistent testimony denied her any credibility, making relying on her accounts unsafe.
The judge, however, did not reject the fact that it was proven that she was defiled but the concern was which route it took.
“The witness is a criminal case upon whose evidence it is proposed to rely should not create an impression on the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence.”
"It was unsafe to rely on this witness," the judge said in a decision made on January 12, 2024.
"The conviction was unsafe. The same is quashed and the sentence is set aside. The appellant is set at liberty unless otherwise lawfully held," the judge said.
Agunda was accused of committing the offence on April 6, 2019, in the Junda area, Kisauni subcounty in Mombasa county.
