• Man says teachers at his daughter's school wanted custody of his children and may have influenced her testimony.
• Judge rules that the child's mind is easy to influence, her mind and memory not as reliable as an adult's.
Image: File
The High Court has acquitted a father sentenced to serve life imprisonment for defiling his daughter.
Milimani Judge Luka Kimaru on Tuesday said the nine-year-old girl's evidence was exaggerated to "sound more interesting".
“It was clear to this court that the complainant’s testimony may have been embellished. The conviction is quashed and sentence imposed on him is set aside,” Kimaru ruled.
The court said the uncorroborated evidence could have been influenced by people who interacted with her to make allegations with no basis in the truth.
SOM was charged with incest said to have taken place between January 1 and September 29, 2017, in Ruaraka within Nairobi county.
According to the charges, SOM unlawfully and intentionally committed an indecent act with EO by touching her private parts. He denied the charges but was convicted and sentenced to life imprisonment.
EO said she lived with her father, younger brother and younger sister in a two-roomed house. Their mother lived in Migori. She told the court that her father and brother used to sleep in the living room while she and her sister in the bedroom.
One Friday night as they were all sleeping, she said, her father came to the bedroom, woke her up and took her to the living room. He instructed her to remove her clothes but she hesitated and asked why he wanted her to undress.
“He threatened to beat me up if I disobeyed him. So I, undressed as he did too. He instructed me to lie on top of him which I declined. He even promised to give me Sh100 if I had sex with him, but I stayed still,” she told the court.
She testified that her father did not sexually assault her that night.
The following night, he woke her again and took her to the living room where he forced her to undress. He laid her on the seat and sodomised her.
She said her father stopped when she complained that she was in pain. When she went to school the following Monday, she informed her teacher of the incident.
“That evening when I got back from school, he beat me up and accused me of visiting the neighbour’s house and injured my hand. Later on, the teacher informed a parent at the school and they reported the matter to Ruaraka police station. My father was arrested and I was taken to hospital for medical treatment,” she told the court.
SOM moved to the High Court to appeal the sentence. He argued that the trial magistrate shifted the burden of proof from the prosecution to the defence when in fact, the element of sexual intercourse was not proven.
He told the court that he has six children, three of whom he lived with. The court heard that teachers at his daughter's school wanted custody of his children but he declined.
“My daughter visited Ruaraka police station on several occasions. When I inquired why she was going to the police station, she informed me that a teacher at her school had instructed her to report that her father was beating her,” SOM said.
Sometime in September 2017, SOM said his daughter was missing from home. He went to her school but was unable to locate her. He reported that she was missing at Ruaraka police but was, however, not issued with an OB number. He also reported the matter to his bishop.
Police told him to get a letter from the daughter’s school confirming that she was missing, he told the court.
“I was arrested when I went to pick the letter from the school and was charged. I did not sexually abuse my daughter,” he said.
He said medical evidence presented before the trial court failed to establish the element of penetration, saying the complainant was not a credible witness as she was a problematic child who spent several nights away from home.
He said the evidence of the prosecution witnesses was full of contradictions.
Emmy Kosgei, a clinical officer at MSF Clinic in Eastleigh, said the complainant was examined the on September 29, 2017, around 3pm, six days after her last known sexual assault.
She said the complainant alleged to have been sexually assaulted several times. The report showed that she had no visible physical injuries and no irregularity on her private parts.
This report was confirmed after another test by police doctor Joseph Maundu.
Justice Kimaru affirmed that a child’s power of observation and memory are less reliable than an adult’s. He said children are prone to live in a make-believe world so that they magnify incidents which happen to them or invent them completely.
Thirdly, he said, they are also very egocentric, so that details seemingly unrelated to their own world are quickly forgotten by them and because of their immaturity, they are very suggestible and can easily be influenced.
“This court is of the view that the element of penetration was not established by the prosecution. The medical evidence presented before the trial court was inconclusive regarding penetration, which might be attributable to the fact that the minor was examined approximately six days after the incident occurred,” he ruled.
Edited by R.Wamochie