How domestic row nearly landed man in jail for 30 years over incest claims

What started as scolding by a man of his wife and two minor children in Kilifi County ended up almost costing him 30 years in jail over allegations of committing incest with his 10-year-old daughter (BMM)

The man told the court that his 10-year-old daughter and 12-year-old son set him up because he was quarreling and fighting with their mother.

According to EMK’s wife (PW1), the husband came home on the evening of April 21, 2022, in a bad mood and scolded her and the children.

EMK was charged with committing incest with the daughter on April 21, 2022, in Mtwapa, Kilifi County.

Senior Principal Magistrate Joe Mutuku found EMK guilty and sentenced him to 30 years in prison.

However, upon appeal, Justice Paul Rotich quashed the sentence, poking holes in the prosecution’s case after finding that there was no evidence that BMM’s hymen was broken on the said night they accused their father.

Justice Rotich noted that the prosecution’s evidence was full of contradictions and inconsistencies, which cast doubt on the credibility and veracity of the evidence tendered by the prosecution. 

The judge said it is not clear from the evidence of the complainant (BMM) whether the appellant (EMK) penetrated her, yet he was found guilty of incest and sentenced to serve 30 years imprisonment.

“The upshot of my findings above is this appeal is allowed. Accordingly, the conviction and sentence of the appellant are set aside and the appellant is set at liberty forthwith unless otherwise lawfully held,” said Justice Rotich.

According to EMK’s evidence the daughter (BMM) framed him because he was quarrelling and fighting with her mother with whom they were very close. 

EMK called a witness, DW3, who told the court that the accused had a very good relationship with his wife and children, particularly his son.

It was BMM’s evidence that on April 21, 2022, after dinner, when her mother was in the bathroom, her father told her to lie down and touched her private parts and she became wet.

BMM further told the lower court that she was woken up by her mother and she experienced a lot of pain in her private parts, which had a watery substance. 

However, on cross-examination she said she was asleep and did not know what happened.

BMM’s brother (DWW) said that he pretended to be asleep when his father came to check on them and saw him uncover the sister’s leso, take off the tights and defile her. 

DWW said that he later run out of the house calling her mother who was bathing and informed her that EMK was defiling his sister.

EMK’s wife, (PW1) told the magistrate court that the husband requested they settle the matter at home.

She said that when she inspected her daughter, she found that she was wet and had semen on her thighs. However, the doctor who examined BMM did not see it.

Further, the medical report did not show that the hymen was freshly broken despite it missing.

PW1 said she found the daughter sleeping and her tights were on but was unusually wet.

She said BMM started crying and complained that she was having sores and was in pain. 

PW1 later reported the case at the Police Station and took the victim to hospital for examination and treatment.

According to PW1, on April 21 2022 at about 6.00pm she returned from work and proceeded to prepare dinner. 

Shortly the husband also returned home seemingly in a bad mood and scolded her and the kids.

She then took water to the toilet that they also use as a bathroom for him to take a bath and she followed suit immediately after.

PW1 said while she was having a bath the son knocked on the bathroom door while shouting ‘“mama toka daddy.’

She hurriedly wrapped herself in a leso and rushed out and run into their house, where she found the husband in their bedroom on his cellphone.

PW1 said the son discreetly told her he was doing “bad manners” to her sister.

John Musau, a registered Clinical Officer stationed at Mtwapa Health Centre said that upon examination, he found that BMM had a hyper pigmented labia majora and minora (darkening of inner and outer vulva lips) and had redness on the vaginal walls and her hymen was also missing. 

In his medical report, Musau noted that the urine had epithelial cells and hymen was missing and concluded there was defilement. 

However, on cross-examination, Musau said that although there was redness on BMM’s private parts there was no seminal fluid or sperms noted.

He admitted that BMM did not have bruises in her genetalia and there was no discharge. 

“If there were no bruises, hymen is not shown to be freshly broken but was missing, there was no discharge, what was the basis of the conclusion of defilement?,” asked Justice Rotich.

The judge questioned if the missing hymen was probably the history of the patient. 

Justice Rotich said it is instructive to note the examination was done the same day of the incident as the complainant was taken to hospital the same day. 

“Even the discharge PW1 testified that she saw when examining the complainant (daughter’s) genitalia, what showed like sperm substance was not seen by the doctor” said Justice Rotich.