Bungoma man escapes 15-year defilement sentence after appeal

A Bungoma court has freed a man who was serving a 15-year sentence for defilement because the age of the victim was not proved during trial.

Justice Hedwig Ong'undi, of the High Court in Bungoma, quashed the conviction and the sentence handed down to Joel Wekesa Sifuna saying none of the exhibits presented before the court told the age of the complainant.

"The trial court did not rely on the birth certificate of the woman but on the mother's word that she was 16 at the time of the incident. The said minor's conduct also betrayed her," Justice Ong'undi said after Sifuna appealed the sentence.

The judged added: "The trial magistrate erred in relying on non-existent evidence in the form of a birth certificate to prove age. Had the age been proved, the conviction would have been upheld."

Sifuna, who at the time of the offense was assessed to be between 18 and 19 years old, was convicted and sentenced by the Bungoma chief magistrates court on June 14, 2017. The court heard that he had defiled a girl with whom they had been in love since July 2016.

The girl reportedly told the doctor who performed a medical check on her that she had been intimate with Sifuna at least ten times before they were caught, on August 8, 2016. She said took herself to Sifuna's house at night after he asked her to go.

"Even if one was to guess her age, would he/she place her in the bracket of a minor? Her conduct betrays her. She explains having gone to Sifuna's house at 8 pm. When she landed there, she did not struggle over anything," reads Lady Justice Ong'undi's judgment.

In his defense, Sifuna raised six grounds against his sentencing. This included the fact that he was a minor just like his lover. He told Justice Ong'undi that based on this fact, the sentence meted out on him was excessive.

"The court did not consider my mitigation even as I pleaded for a lesser sentence," Sifuna said.

He also argued that his lover was taken for medical assessment three days after the sexual offence took place. Yet, a victim of sexual abuse is required to undergo a medical check within 24 hours.

The girl's brothers, the court heard, beat up Sifuna when they caught them sleeping at Sifuna's house.