- The judge was persuaded that the appellant was exposed to an unfair trial because evidence of mental illness was tendered and was noted from the verdict.
- The appellant was convicted in 2021 after the trial court found him guilty of the offence which he committed in 2016.
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An insane man who was convicted of raping an 87-year-old granny in Kitui has been freed by the High Court because of his condition.
The appellant was convicted in 2021 after the trial court found him guilty of the offence which he committed in 2016.
It found that though he was guilty, he was insane and they sent him to custody under Section 167(1) of the Criminal Procedure Code to be held at Presidential Pleasure.
Being dissatisfied, the man appealed.
A judgement delivered on December 7 by Justice Robert Limo, found that the trial court’s verdict shows that the appellant may have been exposed to unfairness because he was mentally unstable.
The court also found that the ground in the appeal regarding identification was legitimate.
The evidence tendered by the prosecution as to the source of light in the scene is lacking.
The complainant states that she visually recognised the appellant but the source of light in the incident was not stated in court.
The judge was persuaded that the appellant was exposed to an unfair trial because evidence of mental illness was tendered and was noted from the verdict.
Had the court found the basis for upholding the conviction, the court would still have found that the provisions of Section 167 were either not complied with and/or that the section is unconstitutional and found that the appellant should have been sent to a mental hospital rather than jail.
“I find that conviction was unsafe for the afore-stated reasons. I allow this appeal. The conviction and sentence are set aside; the appellant shall be set free otherwise lawfully held,” the judge ruled.
It was the prosecution's case that the granny was sleeping in her rental house when the appellant sneaked into her bed and held her neck before raping her. Apparently, the old lady had not closed her door before going to bed.
She testified that she had instructed her house help to alert her before leaving the house so that she could wake up and close her door.
The house help left before alerting her and that is why it was possible for the assailant to gain entry to the house at the wee hours of the night to commit the offence.
The complainant stated that he saw the appellant clearly as there was light though the source was not revealed.
She testified that she bled a lot as a result of the ordeal and that on the next morning she was taken for treatment at Nguni Dispensary and later Mwingi District Hospital and that she later reported the incident at Mwingi Police Station.
She stated that she knew the appellant well as she was a distant neighbour.
Dr Ndirangu Joram testified that the complainant's injuries were estimated to be four days.
Joram said she had no injuries on her head and upper neck or lower. The P3 indicated that the complainant had been raped.
When placed on his defence, the appellant gave an unsworn statement simply stating that he did not rape the complainant.