The High Court in Garsen overturned the conviction and quashed the sentence imposed on Sammy Dambala by a magistrate's court.
A man sentenced to 20 years in prison for defiling a 15-year-old girl has been freed after the High Court ruled that he should have benefited from his defence that he believed the minor was an adult because of her body size.
The High Court in Garsen overturned the conviction and quashed the sentence imposed on Sammy Dambala by a magistrate's court.
Justice Mugure Thande found that Dambala had raised the defence of Section 8 (5) of the Sexual Offences Act.
Section 8 (5) provides that a person accused of child defilement can be found not guilty if it is proved that such child deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence and if the accused reasonably believed that the child was over the age of eighteen years.
It says: "It is a defence to a charge under this section if -(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at
the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of eighteen years."
Dambala had stated that he believed that due to her size, the girl was an adult who wanted him to marry her.
Appeared as an adult
“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.
Justice Thande also ruled that the burden of proof is always on the prosecution to dispel any doubts that may arise, failing which the advantage 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 appellant’s defence,” ruled Justice Thande.
The judge also noted that although the trial court found that the complainant said he thought the girl was an adult, it made no finding and said nothing about her appearance.
The High Court noted that the appellant stated that when the complainant told him she wanted to marry him, he looked at her body size, thought she was an adult and agreed to marry her.
Had sexual intercourse
The girl had also told the court that she had had sexual intercourse with the complainant on several occasions before the incident in question, had become pregnant, and that the Dambala supported her and the child and visited them both.
Dambala was accused of defiling the girl on March 22, 2020, in a village in Garsen, Tana River County.
According to the prosecution, the minor was a 15-year-old Class 5 pupil and on the day in question, she and her friend went to church and then to the appellant's uncle's house.
The court heard that they found Dambala alone in the house when he invited them in before the girl left her friend and went into one of the rooms with Dambala.
The court also heard that while they were in the room they engaged in sexual activities and remained in the house until 8pm when the girl's parents went to look for her and found her under the bed in one of the rooms.
Confirmed that she was pregnant
The prosecution also told the court that the minor was taken to the area chief and the following day the incident was reported to Gamba police station before she was taken to Garsen hospital where it was confirmed that she was pregnant.
In his defence, Dambala admitted that he had sexual relations with the minor and impregnated her and that when the girl visited him, she told him that she did not want to go back home and that she wanted him to marry her.
In his appeal, Dambala argued that the trial court erred in failing to consider that the prosecution had failed to prove its case beyond reasonable doubt, as there were sharp contradictions, and that the court had failed to adequately consider his defence.
