How Runyenjes defilement suspect was freed over poor evidence

NAIROBI: Having sex with a boy or a girl under the age of 18 years is one of the most grievous crimes in Kenya.

It does not matter that the minor agreed or even induced the partner into the act. The law does not recognise consent for sex by an underage.

However, in the absence of birth records, a dispute on the exact age of the victim can provide an easy escape to freedom for the offender.

In January 2013, Joseph Njiru Kithaka was charged with defiling a girl who was said to be 15 years old. The girl was actually Njiru’s lover.

She had gone to visit him at his parent’s home on January 1, 2013 and stayed with him till January 23, that year.

Meanwhile, the mother reported to the local chief that her daughter was living with Njiru. On January 23, 2013 at around 2am, the chief knocked at their door and arrested the two lovers.

They were taken to Runyenjes Police Station. The girl was taken for medical examination and later she recorded her statement with the police. Njiru was charged with defiling her and tried by a Principal Magistrate court in Runyenjes.

The prosecution called five witnesses while Njiru called his mother and his brother as defence witnesses. A clinical officer attached to Runyenjes District Hospital produced the P3 form.

He also testified that after examining the girl he had found all her sexual systems normal except a whitish discharge from her private parts. He said laboratory results had revealed nothing of medical importance.

He told the court that he had estimated the age of the girl to be 15 years and had concluded she was sexually active.

The charge sheet, however, indicated the girl was 16 years old. The girl and her mother told the court that she was 17 years. The girl testified that she and Njiru had been having sexual intercourse.

The magistrate worked with the age bracket and concluded that the girl was between 16 and 17 years old.

On April 30, 2013 Njiru was convicted and sentenced to serve 15 years in prison. No age assessment report or birth certificate was tendered in court as evidence of the girl’s age.

Njiru appealed to the High Court in Embu on four grounds. One, that the trial court relied on evidence of a single witness, two that the appellant was not examined by the doctor to clear any doubts as to whether indeed she had been defiled, three that the testimony of the girl contradicted the statement she recorded at the police station and four, that the medical evidence did not support her evidence.

AGE ASSESSMENT

At the very onset, the State conceded that they would not oppose the appeal based on two grounds, that the age of the girl was not established and that the sentence imposed by the magistrate was hence unlawful.

Presiding judge Florence Muchemi had an easy time deciding the case. She acknowledged the exact age of the girl was unknown.

“It is trite law that proof of age can only be established by tendering an age assessment report or a birth certificate. The prosecution did not produce any of the two documents. The court relied on the testimony of the witnesses, the charge sheet and the estimated age in the P3 form. None of these documents can be relied on to proof the age of the complainant,” the judge ruled.

She said the trial magistrate should have sent the complainant for age assessment even as the hearing proceeded.

“In absence of proof of age, any conviction for the offence of defilement will not be safe,” Justice muchemi said.

Further, Justice Muchemi pointed out that the medical evidence tendered before the magistrate court did not support the charge.

“The finding of the magistrate that the hymen was broken thus proving penetration was not founded on sound evidence. The report produced by the clinical officer did not establish when the hymen was broken. Was it during the material period; January 1 to 23, 2013 or at any other time? It was not enough for the complainant to testify that she and the appellant engaged in sexual intercourse during the material period,” the judge said.

Muchemi said if the age had been proved and medical evidence was lacking, she would have considered reversing the finding of the trial court and convicting Njiru with a lesser offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act.

“However, this is not tenable in the circumstances since the prosecution in a charge under section 11 (1) of the Act are required to prove that the complainant was a child which they failed to do in this case,” the judge summed up.

In many such cases, the prosecution would have applied for a retrial of the accused but in this case they did not. The judge noted that a retrial would not have been in the interests of justice.

MEDICAL EVIDENCE

“The appellant was convicted about one and a half years ago. If retrial is ordered, the prosecution may not be able to obtain accurate age assessment due to lapse of time. Coupled with the inconclusive medical evidence, retrial in this case may not serve the interest of justice. It is also likely to cause prejudice to the appellant in a fresh trial,” she ruled.

She added: “I agree with the State that the conviction cannot stand in the absence of evidence of age assessment and positive medical evidence."

On December 18, 2014 the court set aside the sentence and Njiru was a free man.