A man who had been jailed for 15 years for defilement has been freed by a court citing a negligible age difference with the girl.
At the time of the crime, which led to the girl's pregnancy at 16, the man, Chaniro Mgandi Dziwe, was 19 years old.
On January 12, the High Court set aside the sentence that had been imposed on Dziwe by a magistrate’s court in Kwale and substituted it with a probation order for three years.
Justice Kiarie Waweru ruled that the case called for a different approach other than applying the sentence “mechanically”.
“The complainant and the appellant were in the same school and I'm persuaded to believe that their age difference was negligible, the appellant having attained the age of majority before the complainant notwithstanding,” said Justice Waweru.
The judge noted that at the time the appellant, Dziwe, tendered his defence, he said he was 21 years old and in Standard Eight at a primary school in Kwale County.
“This was not disputed and renders credence to the complainant’s assertion that they were schoolmates, this would mean that at the time of the offence, he was 19 years old,” said Justice Waweru.
According to the prosecution, between April 2019 and December 2019 within Kinango sub-County, Dziwe defiled the girl, identified as KK in court papers, a child aged 16 years.
The decision by the High Court followed an appeal by Dziwe against the magistrate’s decision on both conviction and sentence.
He argued that the trial magistrate erred in law and fact by not considering that there were contradictions and discrepancies in the prosecution’s case.
Dziwe also argued that the magistrate erred in failing to consider that the prosecution had failed to prove its case beyond reasonable doubt and in failing to consider that the evidence of a doctor was not consistent with that of the complainant.
The appellant also argued that the magistrate erred by failing to consider the defence and his mitigation.
The State, through the Director of Public Prosecution, opposed the appeal, arguing that the prosecution had proved the offence to the required standards.
In her evidence at the trial court, KK testified that she had been Dziwe’s girlfriend since April 2019 and that both went to the same school and she referred to the appellant as her husband.
The complainant was examined by a clinical officer on December 30, 2019, and was found to be pregnant, the court heard.
After delivery, the court was told that a DNA test confirmed that there was a 99.99 % chance that Dziwe was the father of the complainant’s child.
The court heard that the complainant did not have a certificate of birth but her age was medically assessed at 16 years.
The High Court noted that the prosecution adduced evidence that proved its case against the appellant beyond any reasonable doubt but noted the case called for a different approach.
