• Judge said scientific evidence could greatly assist the court to establish whether or not Otiende was linked to her pregnancy.
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A man serving 20 years for defiling and impregnating his niece will await a DNA test on the child before the court rules on his appeal.
David Otiende was convicted and sentenced to 20 years in jail last year for defiling the minor in 2018 in Kisumu.
He appealed saying no witnesses were brought in court to testify, other than the complainant.
Justice J. Kamau, before making his judgment, however, said when the victim was first examined, she was found to have been pregnant and had a history of defilement.
The court also heard that no other witness was called to testify that Otiende defiled her.
After analysing the evidence, the trial court judge nonetheless found him to have defiled her as he believed her version of what transpired.
The trial court considered the evidence of clinical officer Mercy Achieng that the complainant was pregnant at the time she was examined.
It would not have been possible to determine with certainty whose child she was carrying at the time of the trial as she was pregnant.
However, it is now four years since the incident occurred and the victim is likely to have borne a child.
The judge said scientific evidence could go a long way in assisting the court to establish whether or not Otiende was linked to her pregnancy.
The minor was taken to the hospital more than a month after the alleged defilement by Otiende.
The evidence would help to rule out that the victim did not have sexual relations with someone else. She was emphatic that Otiende defiled her.
The court said a sentence of 20 years is not to be taken lightly as it could lead to deprivation of the appellant’s liberty for a considerable length of time.
"Since no other evidence was adduced during trial to show that the victim had had sexual relations with any person other than the appellant...the only one thing that could conclusively determine whether or not he was the one responsible was DNA testing, as the same would largely be free from human error," the judgment on May 5 read.
The court put on a final decision on quashing the conviction and setting aside the sentence imposed by the trial court.
The judgment will be on hold pending the DNA testing of the appellant, the victim and the child who may have been born out of the union.
"In this regard, this court hereby directs this matter be given a mention for the DPP to trace the whereabouts of the minor with a view to establishing if she gave birth to a baby. And if so, for the court to give directions on the taking of samples if any for purposes of DNA testing and/or for further orders and/or directions" the judge ruled.
(Edited by V. Graham)