A businessman who was wrongly accused of defiling his eight-year-old daughter by his wife in a tussle over family property has been acquitted of incest charges by a Makadara law court.
John had been accused of defiling his daughter at his home in Clayworks estate in Kasarani on December 12, 2016, but was acquitted for lack of evidence.
He was facing an alternative charge of an indecent act with his daughter on the same day but the same was also dismissed for lack of evidence. Senior resident magistrate Eunice Suter acquitted him.
John was arraigned before the court on January 24, 2017, and charged with defilement before the charges were changed to incest on May 24 of the same year.
He was embroiled in a tussle over property with his wife and her family before the case was hatched.
The in-laws wanted his wife to take charge of his property before she relocated to USA.
Conflicting accounts
At the end of his trial, six prosecution witnesses including his wife and the daughter, and house-help had testified against him but did not prove the accusations.
The three main witnesses gave conflicting accounts of the alleged defilement incidents.
Whereas the minor said she reported the “ordeal” to her mother, the mother said she was informed by her sister –an aunt of the child- who had been informed by the couple’s house help after she saw peculiar behaviour with the minor when she was bathing her.
John’s wife claimed that her house-help had no idea of what was happening to the “victim” until a medical examination was done at the Gertrude’s Hospital. Three medical tests were done on the minor.
The medical examinations results also varied. Suter said the medical evidence was materially contradictory and did not support the child’s testimony.
Covered mouth
The house-help said she had noticed the minor had signs of pain in her private parts and upon prodding, she said she had been defiled by her father and warned not to tell anyone and could not scream since he covered her mouth during each incident.
The house-girl claimed she informed an aunt of the minor, who called her sister and informed her.
The aunt declined to record a statement with police or testify in court.
The child claimed to have been defiled several times – twice on her mother’s bed, once inside her father’s car and another incident on the stairs- while her mother was in the bathroom and the house-help was cleaning upstairs.
She claimed that after the defilement, her father told her to wait for him to fetch a cloth and wipe her. But the claims were found to have been mere falsehoods.
Suter said the inconsistency went to the root of the case and completely damaged the prosecution’s case and acquitted John.
Mother-in-law
“I visited the scene and established that the staircase was open and very close to the main bedroom and the living room. If the prosecution case is to be believed, then it means that the accused person defiled the child on the staircase that was not closed which leading to the house help and who was washing upstairs and open to the living room knowing his wife was taking bath,” Suter said.
“What is even puzzling is that he told the child to wait so that he could fetch a cloth to wipe her. I do find that, that such carelessness and comfort in committing such a crime cannot be believed.”
The police officer who investigated the vase said she only picked up the single case where the minor said her father defiled her inside the car on December 12 because she did not believe the others.
And Suter said such testimony could not be taken casually.
The magistrate also considered the fact that the minor’s aunt who was instrumental in the case reaching the police station and was at the station when John was arrested declined to record a statement and was never called to testify.
“Such actions by the said Mary* puts a doubt on her actions in the matter herein. Why was she afraid to record her statement? I do find that her action can only be interpreted to benefit the accused person,” she said.
In his defence, John said the case was related to property and money issues from his wife’s family because his mother-in-law had told him to register property to his children so that it would not raise issues.
Larger scheme
He said one week after the issue arose, his wife tried to get a different agreement with the landlord excluding him but the landlord declined. His wife also attempted to sell the family house but failed.
“I have also considered the defence raised and the fact that the accused points at a larger scheme to take away his property by his in-laws and his wife relocation to the USA,” Suter said.
“I do find that the defence raises material motivation to pursue such a spirited fight in putting him on the case herein. I would not have believed the allegations by the accused person save for the fact that the prosecution case is full of inconsistencies and contradictions.”
