Kilifi court blocks DPP's move to approve marriage of girl aged 16 to a 22-year-old man
Principal Magistrate Ivy Wasike during an interview at the Kilifi Law Courts on November 13, 2024. The magistrate has been handling sexual and gender-based violence cases at the station.
What you need to know:
- A Kilifi court has blocked the DPP's bid to approve a child marriage, ordering the re-arrest of the 22-year-old man and directing the 16-year-old girl back to school.
- In Ganze, a magistrate has ruled against the diversion of defilement charges, calling child marriage abuse and demanding the minor’s best interests be safeguarded.
The missing person report filed at Vitengeni Police Station on Friday, August 8, 2025, seemed routine at first. A brother reporting his 16-year-old sister missing under OB 11/4/8/2025. But when Investigating Officer Police Constable Hillary Miyoma launched the search that would follow, he uncovered a case that would shake Kenya's child protection system to its core.
The Grade Eight pupil from Ganze Sub-county, referred to as D1 to protect her identity, had been found living with 22-year-old man identified as E1. She was pregnant. What happened next would test the very foundations of Kenya's commitment to protecting children from exploitation and abuse.
A system's failure?
Instead of treating this as a clear-cut case of defilement, the Director of Public Prosecutions in Kilifi made a decision that stunned child protection advocates across the country. The DPP disapproved the defilement charges against E1, arguing that since the pair were "living as husband and wife," the case should be diverted rather than prosecuted. The police were ordered to release the perpetrator.
Kilifi-based prosecutor Rachel Livete defended this controversial decision in a letter dated August 25, submitted to Principal Magistrate Ivy Ms Wasike. The prosecutor described the situation as "a Romeo and Juliet case" involving "teenage consensual sexual intercourse."
"The medical evidence shows there was penetration and D1 is currently pregnant. The circumstances of the case depict a Romeo and Juliet case," Ms Livete stated, referring to the accused and complainant who have a six-year age difference and were cohabiting as husband and wife at the time of arrest.
Her reasoning centred on what she perceived as public interest concerns. "Although the evidence meets the threshold to prefer charges, it's not in the public interest to charge since the child expected will be deprived of the right of parental love from one of the parents in the event charges proceed to logical conclusion," she argued.
The logic was that "incarcerating E1 will mean D1 will have to take care of the child single-handedly. In the best interest of the unborn child, we direct that the matter be diverted."
Livete also noted that the girl, in her statement, never mentioned her age or the fact that she was in school, calling this "a plausible defence pursuant to the provisions of Section 8(5) of the Sexual Offences Act." She referenced "High Court jurisprudence suspending defilement trials involving teenagers" as additional justification.
When the case reached Principal Magistrate Ivy Wasike's courtroom, everything changed. In a strongly-worded ruling dated August 28, she refused to let this decision stand unchallenged, blocking the DPP's move and issuing orders that prioritised the child's welfare over legal convenience.
Ms Wasike directed that the minor be placed at a rescue centre for one month while continuing her education. She instructed Ganze Director of Education, Mariam Ngome, to ensure that the minor is allowed to sit for her Grade Eight examinations. During this period, the minor would receive psychosocial support, with the Ganze Children Officer ensuring compliance before any reintegration process could begin.
Most importantly, she ordered Vitengeni OCS, Mohamed Ali, to re-arrest Safari and charge him with the requisite offences under the Children Act. She issued an exclusion order against E1, "restraining him from taking or living with the minor under any circumstances whatsoever until she reaches the age of majority."
The magistrate was crystal clear about the legal framework: "Child marriage constitutes abuse and is an offence under Section 23 of the Sexual Offences Act. Regardless of whether the child willingly went to the perpetrator or posed as an adult, once it is established that she is a minor, the state and the court are duty-bound to protect her, always considering her best interest."
Disturbing pattern
Ms Wasike's ruling revealed broader implications. She noted that child marriage was "rampant" in Ganze Sub-county, where justice actors through the Gender-based Violence team of the Court Users Committee has been holding periodic sessions, imploring the community not to tolerate such acts and to report incidents for action.
"Since the community had reported this matter, they may be discouraged from reporting similar incidents in the future," she said.
She predicted dangerous precedent-setting: "It will not be long till the defence given will be used as a test and the criminal justice system put to task on why young men in their early 20s…and (who) were in a romantic relationship have been brought before court despite the victim being hostile, refusing to testify, or being expectant."
The Children Officer's report painted a heart-breaking picture of a childhood derailed. The girl had withdrawn from school and displayed "signs of distress and secrecy" along with "abnormal behaviour."
"Motherhood and marriage of a minor has a tremendous toll and impact on their social health, emotional development, and functioning, and in many instances leads to a cycle of abuse," Ms Wasike observed. "The withdrawing out of school by the complainant will further have a big impact on her being a mother."
The magistrate questioned the DPP's logic regarding the unborn child: "Letting the perpetrator go free may, in the opinion of this court, not be in the best interest of the unborn child, as it is not a guarantee that he will give the love and support, nor can he be compelled to do so if he chooses to be an absentee father."
She argued that "a more structured approach through the court system would have safeguarded the best interests of the child and the unborn child," noting that prosecutors had alternatives: "It was not mandatory that the perpetrator be charged with defilement. He could have been charged with child abuse or child marriage."
Omar Mohamed, Ganze Sub-County Children Officer, emerged as a crucial advocate. After taking custody of the minor from Police Constable Miyoma, he presented the case of a child in need of care and protection to the court on August 12, 2025.
His requests to the court were comprehensive: permission to take the minor to a rescue centre for two weeks under a care and protection order; summoning the Prosecution Office in Kilifi to explain circumstances under which the case was deferred; ensuring the perpetrator is brought before court without further delay; directing the Vitengeni Officer Commanding Station to re-arrest the perpetrator; and facilitating resubmission of the file to the Director of Public Prosecutions for appropriate charges under the Sexual Offences Act and the Children Act, 2022.
Mohamed also requested continued psychological support and counselling for the minor through the government Child Protection Officer and a certified child counsellor due to the trauma she had endured.
Ms Wasike acknowledged complex family challenges ahead. The victim's family "has strongly expressed dissatisfaction with how the case has been handled" and must be supported to accept the child back and provide "emotional, psychosocial, and holistic support she requires, given that the court cannot allow her to return to her 'marriage'."
"However mutual it was as it will be, the court will perpetrate an illegality and societal ill," the magistrate stated firmly.
Given that the minor needs to sit for her examination, "the reintegration process must be conducted carefully."
The court scheduled further directions for September 23, 2025. This case unfolds at a time described as one when the country is "fiercely battling the endless defilement of children, forced early marriages, and teenage pregnancies."
The timeline speaks volumes: missing person report on August 8, Children Officer's application on August 12, DPP's controversial letter on August 25, and Ms Wasike's corrective ruling on August 28.
Legal framework
Jean-Paul Murunga, Programme Officer for End Sexual Violence at Equality Now, told the Nation that Kenya's laws leave no ambiguity. The Marriage Act (2014) sets the minimum age of marriage at 18, while the Children Act defines anyone under 18 as a child and explicitly prohibits child marriage.
