High Court sets free sex worker who 'defiled boy'

After spending four years in a Kakamega prison, Alice Nyota is finally free after the High Court quashed her conviction over defilement.

Nyota was in 2014 sentenced to 25 years in jail by former Kakamega Chief Magistrate Susan Shitubi.

“We are so accustomed to defilement by men, but rarely are cases of defiling boys brought to the light,” the magistrate had noted.

After the judgment, Nyota lodged an appeal at the High Court, arguing that the sentence was harsh and excessive, and that the complainant had posed to her as an adult. She won last week.

Justice Jesse Njagi poked holes in the boy’s testimony.

“The complainant did not come out as a credible witness. He said the appellant would lock him in the house during the day, but he would visit his aunts in the evening and come later to sleep in the house of the appellant.”

Njagi added: “All these factors clearly show the complainant was willing to stay with the appellant since he had an opportunity to return to his parents but he didn’t.”

“He was just six months short of his 18th birthday. At that age, it was easy from the conduct of the complainant for the appellant to believe he was above 18. In fact, he was behaving like a husband,” said the judge while allowing the appeal.

Metameta Club

The two had met at Kakamega’s Metameta Club on the night of May 6, 2013, and Nyota requested the Standard Seven pupil to escort her to her house.

She submitted that she was a commercial sex worker, and that when they met she was in one of her frequent escapades at the club.

In her house, the judge observed, Nyota prepared supper and convinced the complainant to spend the night with her. The two had a sexual affair for months before they were apprehended by the complainant’s father.

The Director of Public Prosecutions (DPP) through State Prosecutor Samson Ng’etich, argued that in law, a person under the age of 18 cannot consent to sex.

Mr Ng’etich had insisted that the main ingredients of defilement were age, identification and penetration, which the prosecution endeavored to prove.

“In law, a 17 (year-old) cannot in any way give consent to an intercourse. Since the two stayed in the same house for over a month, she ought to have known the complainant was a minor through his conduct and behaviour,” she said.

But Njagi upheld the appellant’s submissions that having met in a bar (where only adults are allowed), Nyota had every reason to believe the complainant was an adult.

The case is similar to another involving a woman who was sentenced to 15 years in jail for defiling a 17-year-old boy. Judith Wandera's case caused an uproar on social media, where many lawyers promised to take it up and file an appeal.

Ms Wandera said she met the complainant in a bar in July 2016, where he offered to buy her some drinks. “I am a commercial sex worker and in my line of duty I met the boda boda rider at a club. I could not think he was an underage. He could attend clubs and drink beer,” she told Principal Magistrate Joan Wambilyanga.

Similar observations were made by Judge Hillary Chemitei when he freed a woman sentenced to 15 years imprisonment for defiling a 17-year-old minor.

Consensual affair

Jane Mumbi was handed the sentence after she was found guilty of defiling the teenager on diverse dates between April 26, 2015 and May 11, 2015 in Trans-Nzoia County.

“It appears if they had sexual intercourse, it was purely a consensual affair. He presented himself as though he was an adult. The fact that the complainant would change from school uniform to civilian, go to a bar and spend the night away does not indicate a minor who was innocent,” said the appellate judge.

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