A court in Marsabit has freed an Assistant Chief jailed for 20 years over alleged incest with his underage daughter.
Justice Said Chitembwe set aside an earlier ruling by a magistrate’s court which handed Kituruni sub-location Assistant-Chief Lengoilei Ilmentiko the jail term after finding him guilty.
Overturning the lower court’s decision, Justice Chitembwe said that the sentence was erroneous given the full situations of the case. He said the charge of incest was framed up and the medical evidence doubtful.
The judge ruled that the high court found out that the appeal was merited and hence allowed.
“The appellant be set at liberty unless otherwise lawfully held,’’ the judge ruled.
He also concurred with the accused’s lawyer Mr Kevin Nyenyire that the prosecution’s evidence was not actual as the trial court erred in law and facts by taking into consideration contradicting evidence by the prosecution witnesses which led to a miscarriage of justice.
The judge also noted that the trial court erred by admitting the evidence of an intermediary witness considering that same was bad in law, adding that besides, the prosecution did not prove its case beyond reasonable doubt.
Counsel Nyenyire had questioned why the alleged offence which reportedly occurred from March 26-27, 2017 was only reported 9 months later.
The defence lawyer had also pointed out the fact that the complainant never gave evidence to the investigating officer to the effect that she had been defiled.
The petitioner, Mr. Lengoilei, was charged on January 9, 2018 with incest contrary to section 20 of the Sexual Offences Act.
He was accused of allegedly defiling his own daughter aged 13 years on diverse dates between March 26 and 28 2017 in Madaraka Estate, Marsabit Township in Marsabit Central Sub-county of Marsabit County.
He faced alternative charge of indecent act with a child contrary to Section 11 of the Sexual Offences Act in the same place and dates.
Lengoilei had denied the charges but the trial magistrate found that he had a case to answer and sentenced him to 20 years imprisonment on November 15, 2018.
The local public administrator, however, filed the appeal before the Marsabit High Court on the ground that the court erred in law and fact by failing to notice the components of the offence as charged were not proved.
Overturning judgment, Justice Chitembwe noted that upon relying on the Gynecologist and obstetrician report from the Gertrude Hospital in Nairobi as well as the account by the police, found out that the examination ruled out the possibility of the complainant’s defilement.
According to the report, the external genitalia of the minor in question was normal though with a rugged hymen which was inferred that could also be as a result of a Sexually Transmitted Diseases (STD).