Justice Waweru Kiarie set Kagera free noting that medical evidence was clear there was no penetration. The termed the doctor's report deceitful.
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A court in Homa Bay on Thursday set free a man who had been sentenced to 10 years in jail for defiling a mentally challenged minor.
Ezekiel Kagera was jailed after he was convicted for attempting to defile HA, a 12-year-old girl.
But Justice Waweru Kiarie set Kagera free noting that medical evidence was clear there was no penetration. The termed the doctor's report deceitful.
"Whereas the medical evidence was clear that there was no defilement, it introduced another angle to the case. Since when did a foul smell from the perineum become evidence of attempted penetration? This was a professional deceit," Kiarie said.
He added, "I am persuaded to arrive at a verdict that the prosecution did not prove its case against the accused."
Kagera had been accused of attempting to defile HA on September 7, 2014 at his home in Homa Bay county.
The minor's mother testified that she had sent the girl to the house but she took too long, prompting. She decided to go check on her.
She had sent her to the house of Kagera to fetch a hoe. She met with her at the door while she was holding her underpants. When she later checked her genitalia, she saw some discharge.
"Upon asking her what happened, she described in details how Kagera had defiled her," the woman told court.
When Doctor Mutai Mercy examined the complainant, she concluded that there was attempted penetration due to foul smell discharge.
Both the mother and the doctor told court that the minor was mentally challenged but in her examination, the trial magistrate noted that the child was intelligent and brave.
"This was contrary to the evidence of the complainant’s mother who testified that the child was mentally challenged," Justice Kiarie said.
Kagera was sentenced to serve 10 years in prison. He appealed against both the conviction and the sentence arguing that the trial magistrate erred in law and in fact by relying on medical evidence that did not link him to the offence.
"The evidence on record is contradictory. The complainant and her mother contend that there was defilement. Given the age of the complainant, one is left wondering why she did not cry out of pain and why there were no tell-tale signs," the judge said.
He said that for an attempted offence to be committed, the actions complained of must pass the “but for” test.
"In the instant case, we do not have evidence of the circumstances that prevented the defilement to be completed," he said.
Edited by P.O