Two boys saved from ‘unfair’ jail term for sexual offences

At the age of 13, Korir was arrested and charged with defiling his neighbour. He was found guilty and jailed for 20 years by a Nakuru Court in 2014. His victim then aged 13, testified against him.

The investigating officer, prosecution and court did not conduct an age assessment. At the beginning of the trial, he took the plea without a lawyer and was granted bond terms similar to those given to adult offenders.

He appealed against the conviction and Justice Joel Ngugi set him free a week ago.

While releasing him, the judge noted that Korir was a minor and he needed to be protected during the process yet this wasn’t accorded to him then.

According to the judge, Korir was subjected to an unfair trial, alone without protection and care.

He further highlighted that Korir had spent seven years in a facility with adults, which include one year of what was supposed to be innocent years of his life which was unfair.

Another minor, Kibet, also suffered a similar fate. He was sentenced to 20 years in jail for defiling a 14-year-old girl on March 11, 2017 at Sapptet Trading Centre in Molo.

Kibet had also appealed against his conviction. In his appeal, he told the court that he had a sexual experience with his girlfriend.

The judge observed that Kibet had turned 18 at some point during trial but conceded that both were minors and were in a friendship which resulted in sexual experimentation.

The two cases are classic examples of how the law discriminates against male minors.

When setting the two free, Justice Ngugi cited a case where Justice Hellen Omondi delivered a ruling in Homa Bay County on a minor who had sued a Mbita court and the Director of Public Prosecution stating that his right was breached given that he was a minor during the time offence was committed.

Justice Omondi had ruled that it was a violation of the Equality Clause of the Constitution to charge and convict a minor male for engaging in consensual sexual conduct with a female minor, instead they should be both charged.

Justice Ngugi said it was discriminatory and unfair to charge underage males when they engage in consensual sex with their female age mates.

“When the alleged perpetrator is a young man or woman of less than 23 years, the act should be amended to consider the age difference between the perpetrator and the victim before charging them,” the judge said.