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High Court now rules incest with minor is lesser offense than defilement

COUNTIES
By Jack Murima | November 24th 2019

The High Court has declared that incest with a minor is a lesser offense than defilement. The verdict is likely to trigger a floodgate of appeals.

The appellant identified as CO wanted his 15-year jail term reduced after he was found guilty of defiling his niece. Justice Ruth Sitati reduced the sentence to 10 years.

The judge found that the victim, LSN was two weeks shy of attaining the age of majority and admitted having consensual relationship with her uncle and engaging in sex. Lady Justice Sitati further observed that the complainant carried herself like an adult which would have provided strong defense for the appellant if only he was not her relative.

CO, 26, was charged with defiling LSN on diverse dates between April 31 and September 11, 2015 at their Masaba village, Butere Sub-county. The complainant told the court that CO approached her in 2014 and requested her to be his girlfriend, a request she agreed.

The then Third Former at a local secondary school testified that soon they started engaging in sex. She recounted that on September 11, area Chief Caleb Okoti and two Administration Police officers found them naked in CO’s place.

They were arrested and put in custody before LSN was rushed to Butere Sub-county Hospital. Tests at the facility confirmed recent penetration as she had epithelial cells in her urine.

CO told the court that he thought the complainant had attained 18 years since they had consensual sex. Lady Justice Sitati declared that the complainant acted in a manner to suggest that she saw the appellant as a prospective husband and she would lie to her parents to go to the lover’s house for sex.

“Its my humble view that if the complainant was just any other girl, the appellant’s defense under Section 8(5) of the Sexual Offences Act qualified as a good defense in his favour and would have exonerated the appellant. But she was not any other girl, she was the appellant’s niece,” she ruled.

The judge said the offence of defilement for a complainant within the age bracket of the complainant attracted a sentence of at least 15 years while incest attracts 10 years making incest a minor cognate offense.

She granted CO 14 days right of appeal.

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