- Upon going through the issues brought before the court and the trial facts, the judge found that Mary's evidence was not believable with regard to incest.
- He observed that this is because all the initial reports and the initial criminal case against Stephen was with regard to him attempting to aid an abortion.
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A man will now walk free after spending almost a year in jail following a conviction of incest.
*Stephen (not his real name) was served life imprisonment on March 9, 2022, before Kilungu Law Courts after his daughter accused him of having defiled her.
The 16-year-old girl *Mary (not her real name) claimed that the father had defiled her on various dates between May and August 2018 in Mukaa, Makueni.
After a full trial, the man was convicted and sentenced, despite his insistence that he had not committed the offence.
Determined to challenge the trial court's decision, Stephen moved to Makueni High Court and appealed.
He argued that the magistrate had failed by convicting him without considering that there was no evidence to prove penetration.
He pointed out that without that evidence, the prosecution could not prove the offence of incest beyond reasonable doubt.
He also faulted the magistrate for shifting the burden of proof to him leading to the wrong conclusion.
Stephen told Justice George Dulu that the trial court had failed to observe that the prosecution evidence was untenable, unworthy contradictory, inconsistent and full of lies.
Upon going through the issues brought before the court and the trial facts, the judge found that Mary's evidence was not believable concerning incest.
He observed that this is because all the initial reports and the initial criminal case against Stephen was with regard to him attempting to aid an abortion.
"I have not been told whether the initial case ended in an acquittal, conviction or withdrawal. Whichever way, it is quite clear to me that this later case against the appellant was an afterthought and based on doubtful evidence, and the trial court should have thus given the appellant the benefit of the doubt," the judge added.
Further, the judge said the trial court ought to have charged the girl's father during the charging of the offence of aiding an abortion.
This is because the facts were in the same series as the earlier case.
"Short of that, it would be very easy for a person to be tried twice or more for the same or some series offences, causing double jeopardy, contrary to the principles of fair trial," the court said.
In conclusion and in the judgment delivered on January 11, Justice Dulu allowed the appeal, quashed the conviction and set aside the sentence.
"I order that the appellant be set at liberty forthwith unless otherwise lawfully held," the judge ordered.