Of Defilement and the Apparent Age of the Child

Two case same sentence and a Precedent

Case one: Memoses Ondachi
A boda-boda operator who admitted defiling a 17-year-old girl was jailed for 15 years. A Nakuru court heard that Memoses Ondachi committed the offence in the house belonging to the minor’s mother at Kapasia estate within Nakuru town between January 1 and May 11, 2018.
“The court has considered the charges and circumstances under which the offence occurred and has noted that the accused admitted, of his own volition, committing the offence. Further, because he is a first offender, and had saved the court time by admitting the charges, the court is inclined to give him the minimum sentence of 15 years in prison,” the Principal Magistrate Joe Omido ruled.

The Affair
According to the police report, the girl dropped out of School and has been living with her a mother doing odd jobs for her upkeep. A sexual relationship developed between the girl and Ondachi, who has also been living with the girl’s mother as a boyfriend. Her brother found out about the affair and reported to their mother. The Mother reported to the police at Bondeni Police Station, Ondachi was arrested and presented in court.
He admitted to the charge and was given 15 yrs.

Case two: Judith Wandera
A 24-year-old woman admitted to defiling a 16-year-old boy was sentenced to 15 years in jail.
A sexual relationship developed between Judith Wandera, a resident of Kicomi in Kisumu city and a 16-year-old boda-boda operator. During the period of their relationship, the two were arrested twice and were each time asked to stop the relationship after the boy’s mother complained to the police citing the age-difference. The boy refused each time and went back to the woman’s house.
Principal Magistrate Joan Wambilyanga in her judgement said both admitted to having sex, sometimes protected, sometimes unprotected many times. Wandera claimed that looking at the boy’s physical appearance, and considering that he wore dreadlocks, drank alcohol and used drugs, she could not tell he was underage. But the magistrate said although the Sexual Offences Act allows an accused to cite this as a defence, especially when physical appearances look deceiving on this occasion, the court found that the woman made no efforts to establish the age of her lover and there was no evidence the complainant lied about his age.
She was given 15 years (the minimum sentence)

Law of precedence

At Malindi, Criminal Appeal No.32 of 2015, (Appeal originating from the conviction and sentence by Hon. L. N. Wasige-SRM in Kilifi CR NO.16 of 2012), Martin Charo (Appellant) Versus Republic (Respondent)

Excerpt from the judgement
The appellant, aged 24 years, was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act and was jailed for 20 years. At the trial court, it had transpired that the thirteen-year old  girl had known Martin Charo for about three years during which time an intimate bond formed between them. On 2nd January of 2012, the girl and her siblings were at the beach when she dodged them and went to Charo’s house.  When her brother went to get her she refused to leave and remained in the house. Late that night, his brother came with other people to collect but again she refused and instead the two lovers started shouting “thieves!” forcing the brothers to withdraw. The duo then escaped from the house to Charo’s parents home. There they stayed for there days during the time, they testified, they had sex many times and then the girl went home. She was taken to the police, Charo was arrested, prosecuted and given 20  years in prison.

He appealed.
After being heard, the appellant judge had this to say:

“I came to see you, have sex then I go back home. When my brothers came you were inside your house. You are Martin Charo. On 2.1.2012 we were together. You were not checked by the doctor.”

The question then is, do the circumstances of the case paint a picture of someone who was defiled?  The circumstances clearly show that it is the complainant who went to the appellant’s house to have sex and then go home. She even dodged her brothers. When her brothers went there at night to collect her, she opted to remain with the appellant. If she was a young girl then why did she go to the appellant’s home to have sex?
The offence of defilement should not be limited to age and penetration. If those were to be taken as conclusive proof of defilement, then young girls would freely engage in sex and then opt to report to the police whenever they disagree with their boyfriends. The conduct of the complainant plays a fundamental role in a defilement case. One can easily conclude that the complainant was defiled after hearing her evidence. Several issues come into focus. Did the complainant report the defilement immediately after the incident? Was she threatened after the incident? How long did it take for her to report? Was there a threat to her life? How long was the relationship? Were the parents aware of the relationship? All these issues lead to the circumstances of the case as envisaged under Section 8(5) of the Sexual Offences Act.
Conviction of a defiler should be based on actual circumstances and proof that the complainant was indeed defiled. This is more so when one considers the lengthy sentences imposed by the law for such an offence. It is unfair to send someone to 20 years imprisonment yet the complainant was enjoying the relationship.
The girl testified that she went to the appellant’s parents’ home, they continued to have sex and then went back home. Those cannot be the circumstances of a victim of defilement. Even if the appellant did not give evidence as to the steps he took to ascertain the age of the complainant, the circumstances are that the complainant behaved like an adult. She left her parents’ home and went to the appellant’s house purposely to have sex. The appellant should not be condemned for the voluntary acts of the complainant.
I do find that the appellant falls within the defence under section 8(5) of the Sexual Offences Act. It is the girl who behaved like an adult. The appellant was not expected to inquire from several people about the age of the complainant. The relationship continued for quite a long time to the extent that age became a non-issue.

I do find that the appeal is merited and is hereby allowed. The appellant shall be set at liberty unless otherwise lawfully held.

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