Judge frees teenage boy accused of impregnating his girlfriend

A man who was jailed for 15 years for allegedly defiling and making his underage girlfriend pregnant has been freed.

Justice Said Chitembwe ruled that it was unfair for the magistrate to jail Lodgers Tsofa Facho when his girlfriend had admitted they were in a long-term intimate relationship and were planning to eventually marry.

“Both the complainant and the appellant were students and engaged in sex at their youthful age with a promise to get married. It would be imprudent to have him spend 15 years in jail when evidence shows they had sex nine times between August 2013 and June 2014,” ruled Chitembwe.

The affair came to light on June 17, 2014 after the girl’s parents and teachers found out that she was three months pregnant. The girl, who was 17-years-old, was in Class Seven while Facho, who was 16, was enrolled at a local youth polytechnic in Malindi. The girl’s parents reported the matter to the chief. Facho was arrested and charged with defilement. He was convicted and sentenced by a magistrate’s court on his 18th birthday on December 9, 2015.

Girl believed

But Justice Chitembwe faulted the punishment, ruling that the circumstances established that the girl behaved like an adult and was not lured into sex.

“At times victims are lured by perpetrators of the crime and in the process are made to behave like adults. However, the victim was the one who, despite her young age, pursued the accused and they had sex together several times. It was not a one-off sexual relationship,” said Chitembwe.

According to the judge, the evidence suggested that the teenagers were committed to their relationship and it was only the pregnancy that disrupted their secret arrangement of ending up as husband and wife.

“The girl was already talking of getting married. I believe she was nursing that promise in her mind when she agreed to have sex with the appellant. Whoever states that he or she is ready to get married exhibits feelings of adulthood. It is only adults who get married,” said the judge.

He accused the investigating officers of doing a shoddy job, stating that they failed to explain when and how they took Facho’s blood samples for a DNA test to ascertain if he was responsible for the pregnancy.

“There was a possibility that the girl had another lover, which she did not disclose to Facho. Police were instructed to arrest two boys but only ended up with Facho. That is why the DNA report was mixed up and confusing,” said Chitembwe.