REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO 14 OF 2012
Appeal from the conviction and sentence of the Principal Magistrate (C.A.S. Mutai) at Mandera in Criminal Case No 294 of 2012
M A A……………………………………….….APPELLANT
VERSUS
REPUBLIC…………………….……………RESPONDENT
JUDGEMENT
Mn A A, the Appellant, was charged with attempted incest contrary to section 20 (2) of the Sexual Offences Act No 3 of 2006 in that on the 16th September 2012 at [particulars withheld] within Mandera County intentionally touched the buttocks of N A A with his penis who was to his knowledge his sister.
He faces a second count of indecent act with an adult contrary to section 11 (A) of the Sexual Offences Act No 3 of 2006. The particulars are similar to the first count.
The Appellant was tried for both offences and convicted and sentenced on the 1st count while the 2nd count was dismissed. The Appellant is related to the complainant N A, PW1, who is his sister. The evidence in support of the case was adduced by PW1 and A A S, PW2, who is the father of PW1 and the Appellant. PW1 testified that on 16th September 2012 she was sleeping in the same house with her father PW2 and her sister when at 3.00am the appellant entered the house wearing his under pants and attempted to sit on her. The commotion woke their father PW2 who pushed the appellant out of the door. In the morning PW2 reported the matter to a Police Reservist and the appellant was arrested and handed over to Police Constable James Maina, PW3, of Mandera Police Station. He was charged with this offence.
In his defence, the appellant told the lower court that on 16th September 2012 his sister PW1 served him with dinner at 8.00pm and he went to sleep. He denied attacking his sister and alleged that their father PW2 had always wanted to have him arrested but his late mother has always intervened and prevented it.
In his petition of appeal the appellant claims that there has been a disagreement between him, his sister the complainant and his father after the death of his mother over family land and that both his father and sister wanted to get rid of him over that land.
The appeal was not opposed by the state.
I have read the evidence adduced in the lower court and evaluated the same. I find the evidence of PW1 and PW2 contradicting. PW1 said that the appellant wanted to sit on her; that they had a lantern in the house; that the appellant removed a knife which he wanted to use to stab their father PW2 and that the appellant placed the knife down and it was picked by their father. On cross examination she said that the appellant did not touch her and that he removed his penis and pressed it on her thighs but did not penetrate her. I find that this evidence in itself is contradictory. She cannot say that the appellant did not touch her and then say he pressed his penis on her thighs.
There is no mention in PW2’s evidence of a knife. His evidence is that he pushed the appellant out of the house. If the appellant has a knife PW2 could have mentioned it. PW2 said he used a torch to see the appellant. This differs from the evidence of PW1 that there was a lantern in the house. PW2 also testified that the appellant started to touch PW1. This contradicts the evidence that the appellant did not touch PW1.
I find that this court is not able to believe the prosecution evidence. It is contradictory and unbelievable. Although the house in which PW1 was sleeping with his father, sister and another child was not described to know how big it was, I doubt that the events happened as described by PW1 and PW2. I doubt that the appellant could have entered the house with the aim of raping his sister when he knew their father, sister and another child were all in the same house. The defence of the appellant and his grounds of appeal raise doubts in my mind that indeed this could be a fabrication perhaps with the aim of getting rid of the appellant as alleged by the appellant. During the trial in the lower court the appellant told the court that he does not stay at home due to hostilities between them.
In view of these doubts, I find that the prosecution in the lower court failed to prove this case beyond reasonable doubt. The learned State Counsel was right in conceding to the appeal. I find the appeal has merit and allow it.
The conviction of the lower court is hereby quashed and the sentence set aside, the appellant is free to enjoy his liberty. He shall be released from custody forthwith unless for any other reason he is lawfully held. I make orders accordingly.
Dated, signed and delivered this 29th day of November 2013.
S.N MUTUKU
JUDGE