• He argued that he was not positively identified
• There was no evidence that the appellant, or whoever the perpetrator was, infected the complainant with HIV
A man who allegedly raped and infected a Nyamira woman with HIV has got reasons to smile after the High Court quashed judgments that sentenced him to 40 years in prison.
GMN was convicted in 2018 and sentenced to 20 years in jail for raping the woman and another 20 years for infecting her with HIV. A court had heard that on the night of December 25, 2017, in Masaba North, he intentionally and unlawfully had sex with the complainant.
GMN appealed. He said he was not examined by a medical doctor to prove that he committed the offences, adding that his right to a fair trial was violated as the prosecution failed to call crucial witnesses.
GMN argued that he was not positively identified and wondered how the complainant saw him leave if she was seriously injured. He urged the court to reevaluate the evidence and find that he was not the offender. His imprisonment was excessive, GMN said.
Yesterday, Justice Esther Maina dismissed the two sentences. She ruled that the prosecution rightly conceded the appeal on the second count as there was no evidence at all that the appellant, or whoever the perpetrator was, infected the complainant with HIV.
In his testimony, medical notes and P3 Form, the clinical officer did not allege that the complainant was infected with HIV.
“In the P3 Form on which the trial magistrate put reliance to make his finding on count 2, the clinical officer states that the complainant was put on PEP because the appellant was under care. He does not state that she was put on PEP because she was found to be infected," the judge read.
"The trial magistrate, therefore, erred in arriving at the conclusion ... The conviction on count 2 is quashed and the sentence of 20 years’ imprisonment set aside.”
Maina said there was no doubt the complainant was raped. She woke up to find a man having sex with her. There was also sufficient evidence to prove she did not consent to the act.
“Be that as it may, it is my finding that the identity of the perpetrator was not proved beyond reasonable doubt. This offence occurred at night while the complainant was asleep. Although it was her evidence that she recognised rather than identified her attacker, it is possible she may have been mistaken, given that the circumstances were not conducive to positive identification,” Maina said.
She said the evidence of the complainant that there was moonlight in the house was not tested.
The court, however, noted her evidence that the perpetrator spoke when she squeezed his genitals. However, she was not asked what he said and for how long he spoke just to be sure that she had sufficient opportunity to hear the voice and recognise the person, Maina said.
"It is unlikely that at her age the complainant could have given false testimony that she was raped, but the chances that she could have been mistaken as to who raped her are high. I would, for the above reasons, give the appellant the benefit of the doubt and acquit him of the charge," Maina ruled.
“Accordingly, the conviction on the charge of rape is also quashed and the sentence of 2 years imprisonment is set aside. Unless otherwise lawfully held, the appellant should be set at liberty forthwith.”
(Edited by F'Orieny)