The high court in Kiambu has overturned a 15-year sentence and set free a man on Friday, who had been convicted and sentenced for defilement by a Thika court in 2017.
Keith Wekesa Simiyu was set free by Lady Justice Lilian Mutende who pointed out the anomalies by the prosecution whom she faulted for failing to produce vital witnesses during the hearing of the case.
The suspect; Simiyu, was charged with the offence of defilement contrary to the sexual offences act of 2006.
Particulars of the charge stated that on May 1, 2015, at Gumbu trading centre in Murang’ a County within the republic of Kenya, he unlawfully defiled the 17-year-old girl.
He faced an alternative charge that on the material day, he committed an indecent act with a girl contrary to section 11(1) of the sexual offences act of 2006.
Aggrieved, Simiyu appealed on 14 grounds which were condensed. He had argued that the charge was not proved beyond a reasonable doubt, the evidence adduced was contradictory and inconsistent and witnesses were not availed to testify.
He also stated that the sentence imposed was harsh and excessive.
Facts of the case were; on the material day, the victim was on her way home at 6.50 pm when the appellant stalked her, seized her neck and removed her underpants. He then forced her onto the ground and sexually violated her.
On being released, she ran to the home of Joyce Wanjiku, a person who had hired Simiyu to do some construction work.
She then told the other workers to avail the Simiyu, the complainant’s parents were notified of what had happened and her father went, seized the appellant and took him to the police station where he was charged with the offence upon completion of investigations.
When he was put to his defence, he stated that on the material day, he was hired by a foreman to work at punda milia kambiti, a place he had never been before.
As they walked out at around 8pm they encountered some strangers who asked them who Waingo was. He identified himself only to be seized and taken to the administration police post where he met a girl he had never seen.
He was beaten until he lost consciousness and later, he was taken to Makuyu police station where he was accused of defiling a girl.
In his submission, he said the owner of the construction where the girl went to after the alleged incident was not availed to testify.
He also complained that the trial court was not fair to him as he was not given ample time to access a P3 form following his arrest.
In her judgement, Justice Mutende said the prosecution failed to avail Joyce Wanjiku and Mama Nduta to fill in the loopholes that were apparent “failure to call them was detrimental to the prosecution case” she said.
The medical evidence did not confirm that complainant was defiled as there were no tears when she was examined by a clinical officer, Antony Mwangi, she stated.
Lady Justice Mutende from Kitui High court set free the appellant who benefitted from the service week at Kiambu High court when visiting Judges are invited to help clear existing backlog of cases.