A man who had been sentenced to 20 years in prison for defilement has walked free after the High Court in Nyandarua overturned his conviction.
This was after the court ruled that the prosecution’s case was riddled with inconsistencies and that the testimony of the complainant could not legally sustain a conviction.
The case involved David Ndirangu Karugu, who had been found guilty by the trial court at Engineer, Nyandarua, of defiling a 13-year-old girl.
The trial court had sentenced him to 20 years in jail under the Sexual Offences Act.
Dissatisfied with the outcome, Karugu lodged an appeal, arguing that he had been wrongfully convicted on weak evidence.
In his petition before Justice Kiarie Waweru Kiarie, the appellant, through his advocates Njihia Njoroge & Company, raised multiple grounds.
"That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant on evidence manifestly laden with inconsistencies going to the root of the respondent’s case, which inconsistencies should have led to the appellant's acquittal," part of the judgment read.
He further contended that the trial court did not adequately consider his alibi defence, and argued that it should have considered his application to have the complainant recalled for further cross-examination.
He expressed the view that the burden of proof ought to have been on the prosecution to prove its case beyond a reasonable doubt.
Central to the appeal was the reliability of the complainant’s testimony.
According to the judgment, the 13-year-old girl told the court she had been defiled at the house of the appellant's sister. In her testimony, she was first taken to a woman introduced as the appellant’s alleged mother before the incident occurred.
"These were very material witnesses who were not called to testify. These two (alleged mother and sister) could have provided evidence to link the appellant to the offence. The investigating officer did not explain why the two were omitted as witnesses," Justice Kiarie observed in his judgment.
Further, the judgment notes that medical evidence presented in court showed that when the complainant was examined four days after the alleged incident, she was found with a broken hymen and old tags.
The court, however, found that the age of the injury could not be determined.
This contradicted her statement that the alleged defilement by Karugu on September 14 was her first sexual encounter.
"If indeed this was her first sexual encounter, the finding of old tags on her broken hymen on September 18, 2023, is baffling," Justice Kiarie noted.
Further, the judgment records that the complainant had lied to her mother and teachers on several occasions, including about the source of a mobile phone she was found with.
At one point, she claimed it was bought for her by the appellant, only to later shift her account.
"During her testimony in court, she continuously changed her account regarding whether the appellant defiled her," the judgment read.
Justice Kiarie, citing the Court of Appeal decision in Ndungu Kimanyi v Republic (1979), stressed that a witness in a criminal case must not create suspicion about their trustworthiness.
He found that the complainant’s frequent changing narratives rendered her evidence unreliable and in need of corroboration, which the prosecution had failed to provide.
Karugu, for his part, maintained that he was nowhere near the alleged crime scene on the material day. He put forward an alibi, saying he had been at his workplace in Naivasha, where he reported at 7 am and left at 4 pm for his rented house.
However, the judge held that the State failed to disprove his alibi.
Justice Kiarie reaffirmed the principle that an accused person does not bear the burden of proving an alibi; it is sufficient if it raises a reasonable doubt in the mind of the court.
In his grounds of appeal, Karugu also argued that the trial court had rejected documents that could have shown he was at work at the time of the alleged offence, dismissing them on technical grounds rather than considering their substance.
He insisted that the lower court ought to have considered the material inconsistencies between the medical report and the complainant’s testimony, as well as the possibility that the child’s account may have been influenced or fabricated.
The prosecution, notably, did not file any grounds of opposition or written submissions in response to the appeal.
In reviewing the entire case afresh, Justice Kiarie restated the legal test for proving defilement: the prosecution must establish the facts, prove that the complainant was under 18, and show that the accused was the perpetrator.
While the complainant’s age was confirmed through a birth certificate, and medical evidence indicated she had been defiled at some point, the judge found that the link to the appellant had not been proven.
The court pointed out that section 124 of the Evidence Act allows a conviction in sexual offences based solely on the complainant’s evidence if the court is convinced the complainant is telling the truth.
But in this case, the judge found it impossible to make such a finding.
"The complainant’s evidence was not corroborated. There are numerous points that needed to be connected before the trial court could conclude with confidence that the appellant defiled her. Therefore, it was unsafe to rely on it for a conviction," the judge noted.
In the end, the High Court quashed the conviction and set aside the 20-year sentence.
Karugu was set at liberty, subject to there being no other lawful detention.
