Although there is nothing on record about her appearance, the complainant may well have appeared as an adult as the appellant claimed in the trial court, ruled Justice Thande.
The judge further ruled that the onus is always on the prosecution to clear any doubts that may arise, failure to which the benefit would go to the appellant.
Had the trial court considered this defence, it would not have convicted the appellant. Accordingly, I find that the trial court erred in failing to consider the appellants defence, ruled Justice Thande.
The judge also noted that although the trial court stated that the appellant did say that he thought the girl was an adult, it did not make any finding and neither did it say anything about her appearance.
The girl had also told the trial court that she had engaged in sexual activities with the appellant several times before the incident in question and got pregnant and that the appellant has been supporting her and the child and visits them both.
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Muslim for Human Rights (Muhuri) Rapid Response Officer Francis Auma said that, although the courts decision is lawful, the provisions of the Act ought to be reviewed.
There are others cases where the appellants used similar grounds to be set free, said Mr Auma. Ms Hamisa Zaja, the regional coordinator of Coast Association for Persons with Disability, said that, even if a girl appeared like an adult woman, she was still a minor and her case should be treated as such.
Defiling the girlLawyer Shukran Mwabonje told n that the decision of the High Court was proper.
Legally it is a defence; but you must give reasons as to why you thought [a minor] was an adult. My take is that the acquittal is lawful and procedural, he said.
Mr Dambala had been accused of defiling the girl on March 22, 2020 in Garsen, Tana River County. His case joins a growing list of instances where child defilement convicts are set free or given lighter sentence after filing an appeal in court.
In April, the High Court in Mombasa sent a Catholic priest on a three-year mission to educate his congregants about the Sexual Offences Act.
Father Dominic Muli Nzioka was ordered to perform this task at least once a month on a Sunday for three years.
This task will be closely monitored by the Parish priest and the probation officer, who are then required to compile a report and table in court to confirm strict adherence to the assignment.
Justice Anne Ongiinjo sent the clergyman on the mission after confirming the guilty verdict for the offence of committing an indecent act with a minor, who was a member of Mwana Maria Youth at his church.
Principal Magistrate Nelly Kariuki of the Shanzu Sexual and Gender Based Violence court had sentenced him to seven years in prison on June 22, 2023.
In 2022, a Meru High Court overturned a 15-year sentence meted on a boda boda operator who married a 16-year-old girl, saying, she deceived the man that she was an adult. Justice Thripsisa Cherere said there was no indication the girl was below 18 when she agreed to marry Mr Mohamed Hussein.
