Under Section 8(3) of the Sexual Offences Act (Kenya), the penalty for defiling a child aged 12–15 years is imprisonment for a term of not less than 20 years.
A decision by the High Court in Malindi has cast fresh focus on the weight of children’s testimony in sexual offence cases.
This arose while the court was reviewing a 30-year prison sentence that had been handed to a man who had married a 15-year-old girl. The man was arrested when police officers disrupted a ceremony that was intended to formalise the marriage. The offence was allegedly committed between May 1 and May 20, 2022, in Kaloleni, Kilifi County.
In its judgment, the court said medical evidence presented by the clinical officer indicated the complainant had normal genitalia and a broken hymen. However, the judge stated that a broken hymen alone does not constitute proof of defilement in sexual offence cases. “There was no evidence that the hymen was recently broken ... The medical evidence available did not support the complainant’s claim that she had been defiled.”
Despite these findings, the court upheld the conviction of Baraka Kaingu for the offence of defilement. It, however, reduced the sentence imposed by the trial court from 30 years to 20 years in jail. Under Section 8(3) of the Sexual Offences Act (Kenya), the penalty for defiling a child aged 12–15 years is imprisonment for a term of not less than 20 years. The trial magistrate had imposed a 30-year sentence, saying the harsher penalty was intended to deter members of the community from engaging in child marriage.
In its decision on March 11, the High Court held that the statutory minimum sentence already serves as an adequate deterrent. The High Court also noted that Kaingu ought to have been treated as a first offender because no evidence indicated any previous criminal convictions. The court observed that the victim in the case was legally a child under the Sexual Offences Act.
Consequently, her testimony had to be considered within the framework of Section 124 of the Evidence Act (Kenya).
This provision allows a court, in sexual offence cases involving children, to convict on the sole testimony of the child victim if the court is satisfied that the child is telling the truth and provides reasons for that finding.
Kaingu argued in his appeal that the trial court erred in law and fact by failing to conduct a proper examination on the complainant, as required under Kenyan law when receiving evidence from a child.
He also submitted that the prosecution’s case contained significant inconsistencies and discrepancies which, in his view, were not sufficiently addressed by the trial court and therefore did not support a safe conviction.
“The trial magistrate failed to properly consider my defence. The conviction was against the weight of the evidence presented before the court. The sentence imposed was manifestly harsh and excessive,” he said.
He maintained that there was no cogent evidence directly linking him to the commission of the alleged offence. On these grounds, he urged the appellate court to reconsider both the conviction and the sentence.
The prosecution presented several witnesses, including the minor’s grandmother, in support of its case.
The complainant testified that at the material time she was 15 years old and living with her grandmother. She told the court that after completing her Kenya Certificate of Primary Education (KCPE) examinations in 2022, she was unable to join secondary school because her grandmother lacked the necessary financial resources.
According to her testimony, she later developed a relationship with Kaingu, who was their neighbour. The two expressed mutual affection for each other, after which Kaingu invited her to live with him at his home, and they began living together as husband and wife.
She further testified that Kaingu approached her grandmother seeking her hand in marriage and that the grandmother provided clothes to her. The two continued living together for about two weeks, during which time she said they engaged in sexual relations.
The matter came to the attention of local authorities when they were summoned to the chief’s office. The complainant attended together with the appellant, his mother, and her grandmother.
The chief requested the complainant’s birth certificate from her school to confirm her age. After it was produced, the police were called, and both individuals were taken to the police station.
The girl’s grandmother confirmed that the appellant’s mother had approached her seeking permission for their marriage. She had informed her that the girl was still in school.
Shortly afterwards, the complainant left home and began living with the appellant as husband and wife.
She further testified that on May 20, 2022, police officers came to her home and requested her to show them where the complainant was. She led them to the appellant’s residence, where the two were found together.
They were then taken to the chief’s office and later to the police station. The complainant was subsequently taken for medical examination.
The area chief also testified that she had learned the complainant had not returned to school in May 2022 and was reportedly married to the appellant. She arranged for both individuals to appear at her office.
After confirming the circumstances, she contacted the police and handed them over for further action.
A clinical officer testified that the complainant was examined and found to have normal genitalia with a broken hymen. The officer completed a P3 medical form documenting the findings.
Additionally, a police officer testified that she received a report that the complainant had been married to the appellant despite being underage. She arrested the two individuals, conducted investigations, and confirmed that the complainant was a minor.
In his sworn defence, the appellant requested the court to allow the matter to be resolved within the family setting. He also called his brother as a defence witness. The witness told the court that the appellant had indeed married the complainant and that their families had conducted traditional marriage procedures.
According to the witness, a customary ceremony had been held, and the parties had later gone to the assistant chief’s office.
It was at that point, he said, that police officers arrived and arrested both the appellant and the complainant.
Upon reviewing the evidence, the High Court found that the minor’s account was corroborated by that of her grandmother, who confirmed that the minor had left home and was living with the appellant as his wife. The grandmother’s primary request had been that the matter be resolved within the family.
The court also observed that the appellant did not deny the marriage in his defence. Instead, he called his brother as a witness to support his claim that the two had indeed married through traditional arrangements.
Based on this evidence, the court concluded that there was no dispute that the appellant and the complainant had been cohabiting as husband and wife. However, the court emphasised that because the complainant was a minor, she could not legally consent to such a relationship; therefore, the offence of defilement was proved.
“In view of the foregoing, I find that the appellant was convicted on solid evidence,” the court concluded.
The court noted that it had no reason to doubt the minor’s testimony.
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