Man spared jail for defilement as court finds he had a mind of 'a young person'

Justice William Musyoka  at a Milimani court during the judgement on swearing in of the 41 judges. [Collins Kweyu,Standard]

A man who defiled a 15-year-old while he was 18 has been sent on a non-custodial sentence of three years after an appeal court discovered he could have still be harbouring the mind of “a young person”.

Justice William Musyoka of Kakamega said the punitive nature of such offences notwithstanding, the offender would be better off serving an out-of-jail sentence to help reform rather than spend his productive years with hardcore crooks in jail as a lower court had previously decided.

“The complainant was 15 years at the time (of offence), and the appellant (NBS) 18. The age difference was just three years. NBS should be treated as a young person, for all practical purposes, straddling that space between childhood and adulthood,” he said.

“He had just turned 18. Turning 18 makes one an adult, but the mind of such an individual would still be that of a young person, still unsure whether he is an adult or a child. It would be unjust to handle an offender, in that bracket, the same way as with a 30-year-old, or a 40-year-old, or even a 50-year-old.”

Feeling the custodial sentence would not serve the young person well, the High Court accordingly set aside the seven years’ jail term, substituting it with a probation order for three years.

NBS will now be reporting to a probation officer in Mumias East Constituency to guide him on a reform journey together with village administrators including the liguru (village elder), sub-chief and chief.