BY NT CORRESPONDENT.
Court of Appeal has set free a man jailed for 15 years over defilement of minor.
In their Judgement Justice Roselyn Naliaka Nambuye, Daniel Musinga, Patrick Kiage set aside trial court decision that sentenced Eliud Waweru Wambui to 15 years imprisonment for the offence.
The three appellate judges while overturning the lower court decision that the conviction was not safe given the full circumstances of the case and the sentence clearly imposed on the basis of a mandatory minimum was clearly harshly and excessive.
“We allow the appeal, quash the conviction and set aside the sentence. The appellant shall be set at liberty forthwith unless otherwise lawfully held,” ruled the judges.
They further concurred with the trial court erred by failing to consider evidence to fresh scrutiny, reevaluate the evidence tabled before it and analyze as required of it.
The three Judges noted that our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls who consent has been held to be immaterial because they were under 18 years .
“The wisdom and justice of this unfolding tragedy calls for serious interrogation,” said the judges.
They also said that a candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionally is long overdue.
Waweru had been charged that on the month of May 2009 at Makuyu township in Muranga county he committed an act with a 17 and 5 months year old girl.
He further faced an alternative charge that on the diverse dates from January 2009 and November 16 ,2009 at Makuyu township in Muranga he committed an indecent act with 17 year and 5 months girl.
He had denied the charges and prosecution called five witnesses where upon conclusion of the case, the trial magistrate found Waweru had a case to answer.
Trial magistrate Senior Principal Magistrate L. M. Wachira found the main charge was proved against Waweru and convicted to 15 years imprisonment.
Waweru was aggrieved by the decision of the trial court before the high court but justice Achode dismissed it in the year 2014.
He filed the memorandum of appeal before the appellate court on the ground that the court erred in law and fact by failing to notice the ingredients of the offence as charged were not proved.
Waweru said there were material errors in the prosecution evidence contained in exhibit one in that the date of issue of the birth certificate took place before complaint was born and there was likelihood that the charges against him were borne out of malice and ill-will due to the fact he failed to pay the compensation as required by the girl.
He also argued that the court erred by failing to notice that the appellant reasonably believed that the complaint had granted her consent and that she had granted the said consent and believed she was of full age and capacity to contract a marriage.
Waweru added that the fact that the complaint was school going girl did not itself mean that she was under the age of 18 years.
He said the local chief is said to have led some negotiations between the appellant and the complaint’s father which did not bear fruit because the appellant did not have the money demanded ” it is not possible that the complainant was under age and the chief could
not possibly have actively condoned an illegality.
He thus submitted Waweru said the the girl must have decided to “to fix” him for failing to part with the sum of money requested”
Waweru said the complaint presented herself to him as mature girl who was ripe for marriage and she indeed testified that she and he were married.
“The mere fact that the complainant made the appellant her boyfriend had sex by consent several times and was willing to get married to the appellant shows that the complainant presented herself before the appellant as a mature girl ready to get married.
After the parents of the complainant were made aware of the same, they approached the appellant for discussions of the way forward and if the appellant had agreed to pay the sum requested they would not have reported. It is clear therefore that the charges facing the appellant were driven by ill will and vendetta for non payment of Sh 80,000.00,” observed judges
