A judgment recently delivered by Justice Wanjiku Cherere at the High Court in Meru has led to a debate on whether teenagers can consent to sexual intercourse with an adult.
The judgment arose from an appeal filed by Mohammed Hussein who had been convicted of defilement and committing an indecent act with a minor. Hussein had been jailed in September 2021 for 15 years by an Isiolo court.
He is said to have committed the offence between December 6 and 13, 2016 with a minor identified in court papers as LOH who was 16 years old at the time.
In her submission, LOH said that Hussein who was a boda boda rider took her to his home on December 16 where they spent the night and they had sex. The following day, he took her to his parent's home and introduced her to his mother as his wife and they spent three days there and had sex.
The father had been informed of her disappearance from their home on December 6. He reported the matter to the police whom he accompanied to Hussein's home and Hussein and the daughter were arrested.
The girl was taken to a medical centre where it was confirmed that she had had sex. Her age was assessed to be 16, and thus she had been defiled. It was later discovered that the girl was pregnant with Hussein's child. She gave birth to a baby boy in December 2019.
Hussein said they were married and he was arrested because he failed to pay the girl's father Sh250,000.
In the judgment, Justice Wanjiku acknowledged that the prosecution had proved that when the act was committed the girl was a minor and that medical records proved there had been penetration.
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She said that Hussein was not a stranger to the girl and the evidence showed that the incident happened over a period of time and that Hussein said that they were married, therefore not denying that they had sex.
Justice Wanjiku says that LOH behaved like an adult and even agreed to marry Hussein adding that she not only spent the night with him but went to his home voluntarily where she was introduced as the wife and continued to live with him and they had sex on her own free will.
"Taking into account the fact that, there is no evidence on record that the Appellant knew the actual date of birth of the Complainant, in my view, the defence under Section 8 (5) of the Sexual Offences Act applies in this case because the Complainant portrayed herself as an adult," wrote Justice Wanjiku.
She dismissed the case arguing that the appeal was allowed based on the fact that Hussein did not know LOH's actual age. "The mere evidence that Complainant (LOH) was 16 years old did not confirm that she was below 18 years," she wrote.
Hussein went home a free man to his now wife and child.