The high court has yet again quashed a case that looks like an indictment to lower courts.
In the suit, a boda boda operator accused of defiling a 16-year-old girl has escaped a 15-year jail term, after he passed a medical test for a sexually transmitted disease.
This is after the 27-year-old rider was convicted on allegations that he forcefully had sex with the teenager after her father busted them in the house of the accused.
Gevious Otieno was convicted for the offence of defilement of the minor, believed to have been forced by her father to claim she was defiled, on January 1, 2014 in Busia County.
On the material day, the complainant was going to Kayumba market, when the appellant, who is her neighbour, offered to take her there on his motor cycle.
On their way, it started raining and Otieno suggested they seek shelter at his house. It is there that he is said to have defiled her, before her father who was in the neighbourhood busted them and raised alarm, attracting members of public who came and arrested the accused.
During the trial stages, Otieno told the lower court that he was only seeking shelter with the girl as he advised her against village dance and discos, when her father broke into the house.
The lower court, nevertheless convicted him on what looks like shaky evidence of sexual liaison, just because the two were found in a locked house at 7am, with a medical report showing that the teenager was not a virgin.
But upon a successful appeal at the high court, the 'evidence' on penetration was thrown out for it did not pass test of scrutiny. After a proper medical test, it emerged that the girl had, in fact, Kisonono (syphilis), a sexually transmitted disease, which the accused tested negative for.
The medic argued that it was not possible for the rider to have had sexual contact with the girl, without contracting the disease, which the medical report suggested she had, even during the time of the alleged sex.
In the High Court judgement by Justice Kiarie Waweru, it was stated that the conviction of the appellant was not safe and he, therefore, quashed the sentence meted by the learned trial magistrate set aside.
"The appellant is set at liberty unless if otherwise lawfully held." he ordered, pointing out that the lower court relied on hearsay and contradictions, among others.