By wahome thuku

Defiling a child is a serious crime in Kenya, which the law punishes heavily. Under the Children’s Act, a child is anybody who has not attained the age of 18. Apparently, law enforcement agencies focus more attention on the victims of defilement.

Yet the law also provides some form of protection to an underage person when charged with or convicted for defilement. For example, Section 189 of the Children Act prohibits the use of words “conviction” and “sentence” in relation to child offenders.

Section 190 states that no child shall be ordered to imprisonment or to be placed in a detention camp or sentenced to death. A child aged below ten cannot be sent to a rehabilitation school by a court. This side of the law is often overlooked or ignored even by the courts.

Sometime in 2009, an 18-year-old man called Kimani was convicted by a magistrate court for defiling an underage girl in Tigoni, Kiambu. He had been charged with defilement contrary to Section 8(3) of the Sexual Offences Act. At the time the man committed the act, he had not celebrated his 18th birthday meaning he was still to be treated as a minor.

The man preyed on the girl as she was playing at around 3pm. He carried the girl into his house and defiled her. The girl was treated at Tigoni District Hospital and at the Nairobi Women’s Hospital. 

Dr George Githuka, then attached to Tigoni District Hospital, attended to the girl and confirmed she had been defiled. The girl and her sister testified against the man whom they knew very well. The girl, who knew the man as Kimani, was thoroughly cross-examined by his lawyer but remained firm and consistent. Though the man denied having committed the offence, the girl’s statement and the medical evidence was overwhelming.

Upon conviction, he was sentenced to serve 20 years in jail.

He filed an appeal at the High Court, arguing that the magistrate court had proceeded with the trial in complete disregard of the law.

He further argued  the conviction and sentencing were contrary to the law on sentencing of minors. Going through the evidence on record, High Court Judge Mbogholi Msagha easily agreed with the magistrate court that the man was the culprit.

But there was another issue raised by the man and which the judge described as disturbing, that of his age.

At the time of the commission of the offence, he was a juvenile, according to the charge sheet. His age was assessed and the report dated August 19, 2009, confirmed that he was indeed a juvenile at the time he defiled the girl. By the time the age assessment was done he was slightly above 18 years of age.

The magistrate had then formed the view that due to the issues raised at the conclusion of the trial and sentiments made by the probation officer, a constitutional interpretation was required. However, the magistrate court record indicated that his court had convened and sentenced the man. It read thus, “having considered all the circumstances surrounding this case leading to the conviction the accused is hereby sentenced to 20 years imprisonment”.

Justice Mbogholi took issue with this pronouncement. “With profound respect, this was misdirection on the part of the learned trial magistrate,” the judge remarked. “He ought to have noted that the appellant was a juvenile as at the time he was first arraigned in court. The charge sheet indicated as much. Provisions of the Children Act should have been invoked right from the beginning of the trial. The appellant was represented by counsel but unfortunately no objection was raised. Some miscarriage of justice may have occurred but that alone did not exonerate the appellant from the offence charged.”

Mbogholi said  the trial magistrate ought to have applied the provisions of the Children’s Act that outlaws the use of the word “conviction and sentence”.

The judge agreed that miscarriage of justice had been suffered by the man notwithstanding the seriousness of the offence. The law had been breached in sentencing him.

By November 30, this year when the judge delivered the judgment, the man had already spent three years in jail. Legally, he should have been placed in a borstal institution given that he was a minor when he committed the crime.

“Had the learned trial magistrate ordered him to be confined in a borstal institution, he would be out of that institution by now,” Mbogholi concluded. He dismissed the appeal against the conviction but ruled that the period the man had served in jail was sufficient punishment in the circumstances of this case.

With that he ordered that the man be set free forthwith.

The writer is a court reporter with the Standard Group

Email: wthuku@standardmedia.co.ke