Kiambu High court has dismissed an appeal by a man who convicted and sentenced to 20 years imprisonment for defiling a 13 year old girl who he impregnated and married.
Visiting Judge Lady Justice Esther N. Maina sitting at Kiambu High court in her ruling dismissed the appeal in its entirety and upheld the sentence noting that the prosecution had proved the case against the appellant and that he could not exonerate himself.
Alex Munguti Mutisya had appealed against the conviction and sentence against him by Hon B.M.Ekhubi Senior Resident Magistrate on 6th January 2019 on 6 grounds.
He was aggrieved that the trial magistrate had erred in matters of law and fact by not fully considering the mitigating factors while convicting in that the minor’s parents consented by taking bride price from him.
He further noted that the trial magistrate erred by not finding that the test of operation of statutory defence under section 8(5) of the sexual offences act No 3. Of 2006 was satisfied and therefore the guilt of the appellant was effectively defeated.
In his written submission which he relied on, he stated that the act was not proved and that the trial magistrate erred in matters of law by failing to find that the prosecution’s evidence was so inconsistent and contradictory and thus could not sustain conviction. He had also averred that in default of an acquittal the court invokes section 333(2) of the CPC and have the time spent in legal custody considered in calculation of the sentence.
The appeal was vehemently opposed by the prosecution who had proceeded despite the appellant invoking section 200(3) of the CPC insisting that he wanted the case to restart. Counsel argued that the application was rejected following opposition by the prosecution on grounds that the complainant had died.
After considering submission of both sides, Justice Maina said, “in his written submission and orally at the hearing of this appeal admitted to having sex with the complainant and making her pregnant. In the last paragraph of the written submissions, he urges the court to consider the plight of the child of the union between him and the complainant. Penetration was therefore proved “she said.
Justice Maina continued to state that it had been proved beyond reasonable doubt that at the material time, the complainant was 13 years as when she was testifying, she was 14 and this was confirmed by the doctor who examined her “
On the issue of identification, it may not arise as at the time, he was living with the complainant and had sexual relations with her and that he was the father of the child.
She observed that the only issue for determination is whether the defence under section 8(5) of the sexual offences Act applies to the appeallant.The section states, it is a defence to a charge under this section if it is proved that such a child, deceived the accused person into believing that he or she was over the age of 18 years at the time of the commission of the alleged offence.
“It is the appellant’s case that he met the complainant at a club after which he took her to his house. The next day he called his aunts who visited the complainant’s family which agreed he could marry her after negotiations. He contends that she would not have been at the club if she was a child and secondly her relatives would not have agreed to his marrying her.
Justice Maina said this did not persuade her into believing him as he was clean as at the time he was inviting aunties to give consent, he had already defiled her and that they would only be treated as accomplices to the crime and nothing else.
The appeal was heard by Justice Maina during the August service week when courts get visiting judicial officers to help clear the backlog but delivered by the station Judge Justice Christine Meoli. Justice Maina is in charge of Nyamira high court.
By Lydia Shiloya