Man convicted for defilement set free by court

Kisumu, Kenya: A 20-year-old man who was convicted on two counts of defilement found reprieve after a High Court in Kisumu set him free from an initial 20 years imprisonment sentence.

In a judgment issued by Justice Hillary Chemitei, Derick Ochieng was set free after the court found out he was a minor when he committed the offence.

The offence is suspected to have happened between November 3, 2010 and April 7 2011, when Ochieng was above 16 years, in South Ramba sub location in Siaya County.

Chemitei said the maximum sentence that could have been imposed on Ochieng was three years and hence he set aside the sentence issued by Resident Magistrate Dorcas Wangechi.

"Taking into account that the appellant is now 20 years, it appears that he committed the offence when he was about 16. I do note that he has been in custody since May 2011 and has served so far two years of the 20 year sentence. In the premises, I shall set aside the 20 years sentences meted out by the trial court and order that he be set free unless lawfully held," ordered the judge.

On December 30 last year, the court ordered an age assessment on Ochieng and the outcome revealed he is currently 20 years old.

"Going by the report, it is therefore apparent that the appellant was a minor at the time of committing the offence under the Sexual Offences and Children's Acts, an imprisonment penalty for a child offender is not recommended," he said.

Chemitei said it seems the law fails to provide a way forward where the accused committed the offence while a minor but is an adult at the time of sentencing.

He said that the Sexual Offences Act however did not intend that those who committed the offence as minors be treated and punished as adults.

Ochieng appealed to the high court after the sentence, where the prosecution had stated that he defiled the complainant on several occasions.

The court heard that Ochieng defiled the complainant in their grandmother's house and then gave her Sh10 and warned her against informing anybody.

On another occasion, the complainant had been sent to fetch water and Ochieng locked the door and forced himself on her. The unbearable pain made her tell her mother what had been happening.