Man jailed for 'raping' minor freed after appeal

A man serving 15 years imprisonment for defiling a 17-year-old girl has been freed after the court ruled that the minor had deceived him into believing she was an adult.

Kerugoya High Court Judge Lucy Gitari while releasing Isaac Nyamu Wanjiru, who appealed the sentence and conviction, also found that there was a dispute regarding the girl’s age.

While explaining her decision, the judge faulted the lower court for overlooking Mr Nyamu’s defence.

MARRIAGE

“The defence of the appellant was that he had planned with the complainant that they would get married. The complainant informed her that she had attained the age of marriage and she is the one who moved into his house and they lived together as husband and wife until the mother alleged she is a schoolgirl and he took her to the chief’s office,” said Justice Gitari.

“It is therefore clear that the appellant had raised a defence that the complainant had alleged that she was an adult. The Sexual Offences Act avails a defence to an accused person where the complainant deceived him into believing she is an adult,” added the judge.

Mr Nyamu was jailed by a Wang’uru magistrate court for defiling the minor between February 6 and 17, 2016 in Mwea, Kirinyaga County.

The case investigating officer Corporal Ibrahim Mohamed stated that the complainant was a long-time friend of the appellant since the year 2012. He added that the complaint’s mother was opposed to the love affair.

He said their friendship was friends was confirmed by the photographs which were recovered from the mobile phone of Mr Nyamu and which were taken in the year 2015.

On the issue of age, the judge said there was dispute on whether the girl was 17 or 20, since there were two conflicting copies of birth certificates.

REAL AGE

The judge noted that one copy was issued by the Registrar of Births after the offence was committed. The copy was handed over to the case investigator by the complainant’s mother right there in court as he was giving evidence.

The prosecution failed to discharge the burden to proof the age of the complainant.

“The evidence surrounding the age of the complainant was riddled with doubts and contradictions. The complainant herself had claimed to be an adult. I find that doubts on the age of the complainant must be given to the appellant,” sated the judge.

She further explained that in sexual offences, the age of the complainant is a crucial ingredient which must be proved beyond any reasonable doubts. This is because sentence under the Sexual Offences Act is considered based on the age of the minor.

The complainant testified that she was 17 years old and that she was born in 1998 as per the birth certificate she produced as exhibit.

On February 6, 2016 as she relaxed at home at about 3pm, four men who she knew by names entered, among them Mr Nyamu.

The men carried her clothes in a suit case and ordered her to board a waiting motorbike. She was led to Ndoba Forest where Mr Nyamu told her not to worry as she would be married.

However, the judge disputed her evidence saying it was not corroborated and that she was not truthful.

“My independent finding from this evidence is that the complainant and appellant were lovers. The testimony of the complainant that she was abducted is not true. She voluntarily moved in to live with the appellant and they lived together,” said Justice Gitari.

She found that the complainant misled Mr Nyamu to believe that she was 18 years old or she had attained the age of marriage.

“The evidence adduced does not support a charge of defilement. The conviction by the trial Magistrate was clearly against the weight of the evidence. There was no criminal liability as the complainant had misled the appellant,” Justice Gitari ruled.

Justice Gitari said Mr Nyamu’s defence was not shaken.

Mr Nyamu told the court that himself and complainant had plans to marry and she voluntarily moved to his house at Nyangati.

He took the girl to the Assistant Chief when her mother called him to say she is a student. At the Chief’s Office the complainant said she had attained the age of marriage.

A doctor, who examined the complainant after she miscarried her pregnancy, told the court that if she stated that she was 22 years old he could not have doubted.

Lucy Wangari Kamau, a neighbour to Mr Nyamu, told the court that the complainant and the appellant were living together as husband and wife in a rental house.

According to her, the two would sit outside washing clothes and chatting on phone. They lived in the same house and at times she would see the complainant lifting a charcoal jiko. The complainant would go to nearby stream to wash clothes which the accused would help her carry them back to the house.

“This evidence tend to show that the complainant was free as she could sit outside chat on phone go to the river light a jiko and go on for several days. She could have escaped or call her mother,” noted the judge.