Justice Anthony Ndung'u delivering judgment during a past matter.
A mere confession by an underage girl that she spent the night or had intercourse with a man is not enough to jail that man for defilement, a judge has ruled.
The controversial decision came out of a case in which a 16-year-old girl was found by a police officer being escorted home by a man at 4am on December 9, 2021.
The man was later sentenced to 15 years in jail by a lower court, the minimum sentence for defiling a child between the ages of 16 and 18 in Kenya under the Sexual Offences Act.
However, on December 6, 2024, Justice Anthony Ndung’u set him free after the 16-year-old told the court that she had consensual intercourse with the man, whose age is not indicated.
The freeing of the man identified as IMW in court papers raises the threshold for children’s testimonies to be considered in the absence of conclusive medical results. The judge also relied on previous High Court judgments, which said that the defiled party has to describe the ordeal as “graphically” as possible to convince the court.
However, the ruling has sparked criticism among children and women's rights activists.
Evelyne Opondo, a lawyer who is the Africa Regional Director of the International Centre for Research on Women, told Nation.Africa: “Is the judge implying that this is the kind of further evidence that would have made the complainant more believable?”
Part of the girl’s testimony before the court was: “I went to his house. It is in a plot…I found him there. It is house 9. It is one room. I spent there on that day. We had sex. We did not use protection.”
Part of IMW’s appeal was an observation that the girl had told the court that “she went on her own accord.”
Despite the girl’s admission, and regardless of her confession that they had been in an intimate relationship, the judge was not convinced that keeping IMW behind bars was the best course of action.
“He is set at liberty forthwith unless otherwise lawfully held under another warrant,” ruled Justice Ndung’u.
This was because of the apparent contradictions in the evidence and the fact that medical examiners did not find any bodily fluids from IMW in the girl’s private parts.
For the girl’s confession to count, the judge said, it needed to be more elaborate than what she presented before the magistrate.
Justice Ndung’u relied on a decision made in 2015 that says a defiled person needs to paint a vivid picture.
The decision in 2015 by Justice Pauline Nyamweya said: “[The girl’s] evidence of having sex does not necessarily prove that penetration took place in the absence of further evidence and details as to what actually happened in the act of having that sex.
It added: “Evidence of sensory details, such as what a victim heard, saw, felt, and even smelled, is highly relevant evidence to prove the element of penetration, as a victim’s testimony is the best way to establish this element in most cases. The specificity of this category of evidence, even though it may be traumatic, strengthens the credibility of any witness’s testimony, and is particularly powerful when the ability to prove a charge rests with the victim’s testimony and credibility.”
Vivid details
The judge also relied on a 2017 verdict by Justice JC Kemei which equally noted that the victim needs to describe the ordeal in detail.
Her decision read in part: “The complainant needed to provide the vivid details of the sequence of how the rape ordeal took place. Even though the doctor noticed the presence of whitish discharge and semen as well as a rugged vagina, it was only the complainant to present sufficient details as to whether penetration did occur.”
However, in Ms Opondo’s opinion, this requirement that defilement and rape victims should be elaborate in their descriptions is too much to ask.
“I find this highly disturbing, especially the suggestion that when one is being raped, their sensory awareness must be so heightened as to be cognisant of noises, smells, or even to really remember much,” she said.
“The truth is that a lot of people are completely paralysed during such acts and transcend into spaces where they superficially remove themselves from the acts of violation being meted out on them. The experience of trauma, especially something as severe as rape, can vary greatly from person to person. Many survivors do indeed report feeling paralysed or dissociated during the assault, as a coping mechanism to endure the trauma. This dissociation can make it difficult to recall specific details of the event. It's important to acknowledge and respect the diverse ways in which individuals process and survive such traumatic experiences,” she added.
Because the girl had stuttered while giving testimony at the lower court, up to the point of being stood down at some stage, Justice Ndung’u considered her evidence questionable.
“It is also noted that the (girl) was first stood down on her first appearance on account that she was not clear. Further evidence from the (girl) and (the fifth prosecution witness) reveals she was also placed in custody, and this brings the question of whether her statement to the police was voluntary or not,” noted the judge.
“Doubts linger as to what transpired at the material time. The benefit of doubt as per the law goes to (IMW),” the judge added.
The policewoman who found the two said she was returning home from a patrol when she found the girl, who was the daughter of her neighbour, with IMW.
She told the court that when she asked IMW what he was doing, he fled.
Arrested
Afterwards, the girl told the officer that she had spent the night with IMW and that he was escorting her home. The policewoman took the girl home alongside another officer, and the girl’s mother was shocked that her daughter had not spent the night at home.
IMW’s defense was that he was arrested while at work and taken to Naromoru Police Station where he was informed about his liaison with the young girl. He also told the court that he had issues with the policewoman who said he spotted him escorting the girl home, as he had “refused to work for her”. He added that one of the witnesses had wanted his uncle to sell land, but he had refused, and thus he was being framed.
The medical examination part, which would have cemented the conviction, was found inconclusive by the court. The lower court heard from a clinician that the girl had informed a doctor that she had consensual relations with IMW “on several occasions that night”.
The court heard that her hymen was “old broken” and that there were “no bruises to external genitalia, nothing in the urine, nothing found on the vaginal swab, nothing found in her blood.”
The judge ruled: “The medical evidence did not corroborate (the girl’s) evidence. Nothing unusual was seen to conclude that there was defilement as the complainant was examined on the same day.”
As such, the case now relied on what the girl said, but the judge did not find it sufficient.
“The (girl’s) explanation as to what transpired between her and (IMW) was vague. She failed to describe the act complained of clearly, and while I am alive to the impact of developmental stages in children and how the same might affect their ability and willingness to describe organs and acts, evidence must be clear enough to establish the act of penetration. Noting the heavy burden placed on the prosecution in proof of criminal cases, the complainant ought to have described the actual act of penetration.”
Ms Opondo said that in whatever circumstances, the man “should not have had a relationship with a 16-year-old.”
“In this particular case, I see no motivation for the complainant to lie about having sex with the accused,” she argued, also wondering why the girl was put in custody.
“The police really need to be more thoughtful about how they deal with survivors of sexual violence. The disconnect between laws and practice can result in survivors being mistreated or not taken seriously, undermining their trust in the justice system,” she said.
