A man who was serving a 20 year sentence for defiling his girlfriend’s daughter got relief on after the appeal court allowed his appeal and set him free for lack of evidence.
Justice Mohammed Warsame, John Mativo and Gachoka JJ. A faulted the trial court for disregarding the girl’s recanted evidence and convicting him.
Ibrahim Kimutai was set free by the three-judge bench after the victim who is the complainant in the matter recanted her earlier testimony at the trial court leading to her being declared a hostile witness by the prosecution.
However, the court went ahead to convict him using the testimony of the clinical officer who testified stating that according the medical report there was penetration.
The mother of the victim who was Kimutai’s girlfriend testified that the accused never slept on the same bed with the girl which was later confirmed by the girl who had changed her story.
She has told police a different story saying her mother’s friend had defiled her but now at the dock she changed her testimony leaving the prosecution with only the medical report to use in their case.
The appeal court judges wondered why the magistrate ignored the girl’s recanted evidence.
The judges said normally a court will take a perverse view of the credibility of the hostile or refractory witness in view of her shift in position regarding her statement to the police on the case against the accused or her reluctance to testify.
“The complainant’s evidence, in our view, is unreliable. It was the weakest kind of evidence and could not be supported by the testimony of the clinical officer,” the court ruled.
The court further concluded that the conviction was unsafe and could not stand.
“It follows that the conviction premised on the said evidence was totally unsafe. In our view, the prosecutor rightly conceded this appeal,” the ruling read.
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