Tharaka Nithi defiler freed because 'girl brought herself'

A man convicted of defilement has been released over an age technicality.

The High Court freed Nahashon Kirimi because the Magistrates' Court did not resolve his age and that of his accuser before conviction.

Judge Alfred Mabeya gave Mr Kirimi his freedom back after three years in jail when the prosecution on appeal, agreed that the 15-year conviction was too harsh as the lower court did not verify if he was a minor at the time of trial or was above 18.

The judge also found errors in the age of the complainant. The Magistrates' Court held that the girl was 17 years old whereas her father told the police at the time of Kirimi's arrest that she was 19.

Kirimi, on appeal, submitted that he was a minor when he was convicted, in fact the same age as his accuser, and that she had threatened to hang herself if he did not marry her. He never denied having sex with the girl for 11 days before his arrest.

Justice Mabeya said Kirimi told the court he was 20 years.

"The question that arises is, what was the exact age of the complainant? Was she the child of 17 years named in the charge sheet or someone else? The trial court made a finding that she was 17 years. At the commencement of the trial, the court had made a direction that the complainant's age and that of the appellant be assessed. There is no evidence that any of them was assessed," Mabeya ruled.

The girl was in Kirimi's house in Tharaka South sub-county between September 19 and 30 where his mother fed them. She was in secondary school then but she allegedly wanted to get married.

"This court has carefully considered the record. It is clear from the appellant's defence before the trial court that he never attempted to deny the offence. He never denied the act of sexual intercourse with the complainant. What he attempted to do was to show that the act was consensual; that it is the complainant who brought herself to him and she threatened suicide if he chased her away," he ruled.

He added: "From the evidence of the father of the complainant, the girl may have eloped with the appellant. It came out clear at the trial that the complainant had refused to go back to school until she was charged in court."

Kirimi defended himself saying the girl called him saying she had a family problem and he hosted her in his house. She then vehemently refused to go back. Her father made a complaint to the police after a few days after which they were arrested.