Court frees man jailed for 30 years for incest

Police in Baringo are hunting for a 30-year-old man from Kaptalam village who allegedly killed a Form Three girl

The High Court has quashed a 30-year jail term imposed by a Magistrate Court on a man convicted of incest.

Photo credit: File | Nation Media Group

The High Court has quashed a 30-year jail term imposed by a Magistrate Court on a man convicted of incest.

Justice John Mativo allowed the appeal by HMK, who was accused of defiling his five-year-old relative, quashing his conviction and sentence before directing that he be released from prison.                            

The judge explained that the trial court had failed to consider all the evidence tendered by the prosecution and the defence.
The prosecution’s evidence, he said, had suggested the possibility that there was another assailant.

“To me, this is a clear case where the appellant ought to have been given the benefit of the doubt. Accordingly, I am unable to uphold the conviction,” said Justice Mativo, who has since been elevated to a Court of Appeal judge.

HMK was charged with the offence in a court in Wundanyi, Taita Taveta County, in 2018.

By failing to account for all the evidence or providing the reasons for disbelieving it, the trial court erred and prejudiced HMK, Justice Mativo ruled.

If there was evidence provided during trial but which was not referred to in the trial court judgment, he said, it was safe for an appellate court to assume that it was disregarded, not properly weighed or even forgotten at the time the decision was delivered.

“The best indication that a court has applied its mind in the proper manner is to be found in its reasons for judgment, including reasons for acceptance and rejection of the respective witnesses,” said Justice Mativo.

The court said that the trial magistrate misdirected himself in failing to appreciate and consider the disclosure by a prosecution witness that the child was found preparing to engage in sexual activities with another boy in school.

He noted that there was no mention of the “boy” being interrogated and that what emerged was a concerted effort to extract information from the child, which is why HMK’s name popped up after a sustained attempt. 

The court also wondered whether teachers were shifting blame from the school to the complainant’s home.

Justice Mativo also noted that much as it was proper for students to have free time in school, there was an element of laxity on the part of teachers as the pupils were not supervised properly to utilise their free time responsibly.

“Equally worrying is the fact that the magistrate ignored this crucial evidence which suggested that this child could have been sexually assaulted in school under the careless watch of teachers,” he said.

He noted that prosecutors had not attempted to discount such a possibility and that equally important was HMK’s defence that on receiving a witness report, it showed that the child was engaging in sexual activity with another.

He noted that the issue of the complainant engaging in sexual activities with another child or person came up in HMK’s defence and that it was also referred to in the prosecution evidence.

Justice Mativo noted that a trial court has a duty to weigh the evidence adduced in court by all the parties in totality and make a finding on the culpability or otherwise of the accused as it is a basic calling of every court without exception.

“A trial court cannot afford to be seen to be selective in evaluating the evidence tendered before it,” said Justice Mativo.

He added that “in our system of law all persons accused of crimes are presumed innocent until their guilt has been proved beyond reasonable doubt. The burden of proof is on the state to prove the guilt of the accused person”.

In his appeal, HMK sought to have the court overturn the 30-year sentence, arguing that the case was not proved beyond reasonable doubt and that his defence was not considered.

He also argued that the case was not proved to the required standard and that he was not properly identified as the offender.

The court noted that the Director of Public Prosecutions did not file submissions despite being given time to do so.