17 January 2018

Kenya: Inconsistent Evidence Hands Rape Convict His Freedom

The High Court in Kakamega has freed a man who has been serving a 14-year sentence after he was convicted of raping a high school student in Kakamega County two years ago.

The accused, Bernard Opiyo, had appealed the sentence after he was convicted of sexually assaulting and raping the student in Ebutanyi Village, Butere sub-county on January 22 2015.

In his ruling, Kakamega High Court judge, Justice Jesse Njagi said the complainant had been inconsistent in her evidence making her an unreliable witness.

The judge said the complainant had earlier told the court that the accused had sexually assaulted her by inserting his fingers in her private parts but later changed the story claiming she had been raped.


She had told the trial court that she was on her way to school early in the morning when she was stopped by the accused.

She said the accused started running after her when she took off in fear. He outran her and dragged her into a bush where he allegedly raped her.

"I have analysed the evidence of the complainant before the two magistrates. It is clear she is not a reliable witness. The question is, which of the two versions of her evidence is the truthful one?" posed the judge.

He said the complainant had given different versions of evidence while testifying in the matter before Butere Principal Magistrate Charles Mutai.

The judge faulted the investigating officer for preferring rape charges when the complainant reported that the accused had attempted to rape her.


A medical report and a P3 form were produced in court as evidence confirming there was actual penetration of the complainant's private parts.

But the judge said the penetration could have been caused by the accused inserting his fingers in the girl's private parts, which amounted to an act of sexual assault and not rape.

The accused told the judge that he was initially charged with the offence of attempted rape which was substituted with rape under unclear circumstances.

"This court has to treat the evidence with a lot of caution... . It is my finding that the charge against the accused was not proven beyond reasonable doubt. The conviction is hereby quashed and the sentence set aside," said Justice Njagi.


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