Court overturns 15-year sentence for defilement convict

The High Court overturned a 15-year prison sentence imposed on a man accused of defiling a 16-year-old girl

High court judge, Justice Antony Ndungu ruled that the complainant’s evidence of having intercourse without details as to what happened does not prove that penetration took place.

The court held that she failed to provide clear details to prove penetration, a key element of the offense.

While acknowledging the challenges faced by children in articulating details of sexual acts due to their developmental stages affecting their ability and willingness to describe the organs and acts, Ndungu said evidence must still be precise to meet the burden of proof.

“From the foregoing reasons, it is my view that penetration was not proved to the required standard and being an essential ingredient in proving the offence of defilement, the prosecution fell far short of proving their case. Doubts linger as to what transpired at the material time. The benefit of doubt as per the law goes to the appellant,” ruled the judge.

“The conviction and sentence imposed by the trial court are set aside and substituted thereof with an order acquitting the appellant. He is set at liberty forthwith unless otherwise lawfully held under another warrant.”

The accused, had been convicted by a magistrate’s court under Section 8(1) as read with Section 8(4) of the Sexual Offences Act after he was found guilty of engaging in sexual intercourse with the complainant on the night of December 8 and 9, 2021, in Nyeri County.

He was sentenced to 15 years’ imprisonment on February 15, 2022.

Aggrieved by the trial court’s decision, He moved to the High Court arguing that the trial court erred by relying on inconsistent and uncorroborated evidence, failing to consider that penetration an essential element of the offence was not proven.

He also contended that his defense had been unfairly disregarded.

The High Court, upon reevaluating the evidence, found several inconsistencies in the complainant’s testimony, including contradictions about timelines and locations.

Additionally, medical evidence presented by the prosecution did not confirm recent penetration or injuries to support the allegations.

The clinician testified that while the complainant’s hymen was broken, there were no bruises, spermatozoa, or other findings consistent with recent sexual activity.

The judge said that for a defilement conviction to stand, the prosecution must prove the accused’s guilt beyond reasonable doubt, including clear evidence of penetration and credible identification of the perpetrator.

“The medical evidence did not corroborate the complainant’s evidence. Nothing unusual was seen to conclude that there was defilement as the complainant was examined on the same day. It is however trite law that the fact of rape or defilement is not proved by DNA test but by evidence,” ruled Ndungu.