What you need to know:
- The judge said said a broken hymen was not in itself evidence of intimacy.
- He quashed the conviction and sentence and RW was released.
The trial of a Kilifi-based preacher has highlighted how sexual offences are sometimes used to settle scores, leaving innocent people in jail when they shouldn't be.
Pastor RW's troubles began soon after he opened a church near Kikambala in Kilifi County.
According to court records, RW was later arrested, charged and imprisoned for allegedly sexually assaulting a 15-year-old girl.
However, on appeal to the High Court, Judge Kizito Magare found that the evidence presented in the lower court was contradictory and lacked logical consistency.
"The prosecution's case was so weak that no reasonable court could have convicted RW. If people choose to lie, they must do so in the most intelligent way possible," the judge said.
The State had charged RW with two sexual offences that he allegedly committed in Kilifi on December 12, 2019.
The offences were sexually assaulting a minor and committing an indecent act with the girl, both of which he denied. Records show that the trial was held twice.
A clinical officer testified how he had examined a girl who had a broken hymen. He concluded that the girl had been sexually assaulted, although there were no bruises or injuries.
However, court records show that the minor said she had never slept with a man before her encounter with the pastor.
The minor testified that she went to RW's house after he asked her to do so through an unidentified person.
"I shared a bed with RW and his wife while I was staying at his house. He sexually assaulted me," she alleged.
The High Court found that the girl gave contradictory accounts of what happened during her testimony. Records show that she denied the allegations of sexual assault, and during cross-examination by RW, she stated that she had recorded a statement, the contents of which she had forgotten.
On one occasion she claimed that RW was sleeping in another room, but on another occasion she claimed that they had shared the same bed.
After further questioning, she admitted that she was not a virgin and that she had made a false statement. She gave evidence almost two years after the incident, in December 2021.
A village elder and an assistant chief both testified in court about how the plan to arrest RW came about.
According to their testimony, six pastors from different churches in the area met and agreed that he should be summoned and questioned about his miracles. His religious beliefs were said to be against the rules of the village.
According to the evidence presented, the six pastors in the area were not happy with RW's arrival and religious activities, so they decided that he had to leave the area.
"He was told to leave the village, but he neither left nor stopped his religious activities," explained a village elder.
A complaint was then lodged with the police about RW's religious activities, with a request for his arrest.
Under cross-examination, the village elder stated that the accused was running a church without permission.
The village elder stated unequivocally that if RW had left the area, nothing would have happened to him.
The alleged victim's mother also testified, denying that the preacher had defiled her daughter. She said her daughter was having problems and was taken to the church for prayers.
"Nothing happened. The child was healed at first, but got sick again and was brought back there. She was crying. That's why I took her to the pastor," she explained. She said she had sent two of her daughters for prayers.
The officer in charge of the investigation was not called to testify.
In his defence, RW told the court that he had been invited to pray for the children who were hallucinating.
He prayed and the children recovered. After a while, he said, the complainant's father called him again to inform him of her illness, but this time the minor was sent to his home in Kikambala.
"The children arrived at my house with two other people and my wife received them. On December 27,2019, I was arrested on suspicion of defilement," he said.
He claimed to have had disagreements with a neighbouring church over worshippers. "The elders wanted me to close my church and leave. Despite the opposition, I continued my ministry," he said.
A magistrate's court considered the State's evidence, convicted him and sent him to prison.
However, he filed an appeal in which Justice Magare reviewed the case and found that there was insufficient evidence to convict him.
"The minor's evidence is completely unbelievable. It is not plausible, unless the woman is totally deprived, to sleep and watch the duo having sex in her presence," said the judge, who said RW may have been a bad man who took children out of school to pray, but it was clear that the evidence presented was below the required standard.
"The lower court was not concerned with the truth. At least the complainant's evidence, if it was credible, exonerated RW," said the judge, who said the tragedy of the case was that according to the explanation given, the girl was next to the wall while the woman was first on edge of the bed.
"How did this defilement take place? How was the minor defiled in the presence of the woman without her noticing? In the alternative, is it plausible that someone could defile or even have a consensual extra-marital affair in the same bed with the wife without any reaction?" he said.
The judge concluded that the minor's broken hymen could not be blamed on RW, and that the prosecution had also confirmed that RW's troubles stemmed from wars over worshippers.
"There were protocols that he did not follow. If he had followed them, nothing would have happened," the judge said, adding that a broken hymen was not in itself evidence of intimacy.
The judge quashed the conviction and sentence and RW was released.