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-year prison sentence.
Derick Ochieng was set free after Justice Hillary Chemitei ruled that the court had determined he was a minor when he committed the offence.
The offence, which occurred in South Ramba, Siaya, is suspected to have happened between November 3, 2010 and April 7 2011, when Ochieng was above 16 years.
The judge said the maximum sentence that could have been imposed on the offender was three years and 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 years old. I do note that he has been in custody since May 2011 and has so far served two years of the 20-year sentence. I therefore set aside the 20-year sentences meted out by the trial court and order he be set free unless lawfully held," the judge ordered.
No direction
The ruling follows a court order, issued on December 30 last year, requiring that an age assessment be carried out on Ochieng. The outcome revealed he is currently 20 years old.
"Going by the report, it is apparent that the appellant was a minor when he committed the offence and according to the Sexual Offences and Children's acts, an imprisonment penalty for a child offender is not recommended," the judge said.
He said 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.
The judge also observed that the Sexual Offences Act did not intend that those who committed the offence as minors be treated and punished as adults.
Ochieng launched his appeal at the High Court following the previous sentencing where the prosecution said he defiled the complainant on several occasions.
The court heard that when Ochieng first defiled the complainant, he gave her Sh10 and warned her against telling anyone. He reportedly committing the offence a second time and again threatened the girl into silence.
But she finally told her mother when the pain became unbearable.
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