The High Court in Meru has upheld a 15-year jail term handed to a boda boda rider who married a woman he had defiled when she was 16.
Justice Edward Muriithi ruled that even though the woman had told the court she was now Jackson Bundi’s wife, she was not in a position to make that decision seven years ago.
The landmark judgment also draws lines upon incidents where the victim's participation in sex cannot be used in a defilement defence.
Justice Muriithi regretted that the couple had a child and Bundi’s imprisonment deprived the family of a provider, insisting that the law is supposed to protect every child from defilement.
In a judgment that could help discourage child marriages and defilement, Justice Muriithi ruled that the current marriage between the couple could not be used as defence.
In her testimony, the woman, now 23, told the court that she had voluntarily gone to Bundi’s home, where they started living as man and wife.
Justice Muriithi cited Section 4 of the Marriage Act which provides that the minimum age for marriage is 18 and expressly prohibits minors from marrying.
“Just because the complainant has now attained the age of majority does not make previous faults at the time when she was a child right. In fact, Section 87 of the Marriage Act makes it an offence for a person to marry another who is below the age of 18,” he emphasised.
Not sufficiently corroborated
Bundi was on January 23, 2020, convicted of defilement and sentenced to 15 years in prison by Tigania Principal Magistrate Paul Wechuli.
He was charged that on December 5, 2014, in Nkomo location in Tigania West, he defiled a girl aged 15.
Bundi appealed, arguing that prosecutors had not proved their case beyond reasonable doubt and that the sentence was excessive in the circumstances of the case.
He argued that his conviction was wrong because the evidence of the girl was not sufficiently corroborated and her mother and the investigating officer did not testify in the trial.
Bundi told the court that he had always believed that the mother of his child was an adult when they met because of the way she presented herself.
He also faulted the trial court for convicting him without any medical evidence to prove that he was indeed the father of the child to prove that he had indeed defiled her.
However, State Counsel Brenda Nandwa urged the court to uphold the sentence, arguing that corroboration is not mandatory when the victim of a sexual offence is a child.
Concerning the complainant’s age, the court ruled that an age assessment had established that the complainant was about 16 years and 8 months old when she gave birth.
The judge also cited Section 43 (4) of the Sexual Offences Act, which points out instances when a person is incapable of appreciating the nature of an act that causes an offence.
The instances are if they were asleep, unconscious, in an altered state of consciousness, under the influence of medicine, a drug and alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected or mentally impaired.
“This court further finds that the minor was not in a capacity to rationalise the acts that were going on such that it matters not whether she had in fact brought herself to the house of the complainant. A wrong and especially a criminal wrong doesn’t become right for the reasons that the victim contributed to the offence being committed,” he ruled.