A Meru High Court has overturned a 15-year sentence meted on a boda boda rider who married a 16-year old girl, saying she deceived the man that she was an adult.
Justice Thripsisa Cherere said the girl had behaved like an adult and that there was no indication she was below 18 when she agreed to marry Mr Mohammed Hussein.
While making a ruling on an appeal lodged by Mr Hussein who had been convicted of defilement, the judge noted that the two had openly lived as man and wife.
Justice Cherere pointed out that the girl had testified that Mr Hussein had visited their home on December 16, 2018, where they spent the night and engaged in sexual activity.
On the following day, she voluntarily went to Mr Hussein’s parent’s home in Isiolo and was introduced as his wife and they continued to live together while having sexual relations.
However, the girl’s father later stormed the home accompanied by police and arrested the couple.
The girl was escorted to hospital for examination where it was established that she was 16, and had an old perforated hymen.
Mr Hussein was later charged with defilement and an alternative charge of committing an indecent act with a minor.
During his defence, Mr Hussein had told Isiolo Chief Magistrate Lucy Mutai that he was arrested after he failed to raise Sh250,000 that the girl’s father was demanding.
He told the court that the girl, who is currently 20, had delivered a baby boy in December 2019.
However, on November 16, 2021, Ms Mutai ruled that the prosecution had proved that Mr Hussein was guilty of defilement, and sentenced him to 15 years imprisonment.
Lodged an appeal
Dissatisfied by the sentence, Mr Hussein lodged an appeal arguing that the trial magistrate failed to consider his defence and that the girl had deceived him that she was mature.
In her ruling, Justice Cherere said Mr Hussein was justified to cite section 8(5) and (6) of the Sexual Offences Act in his defence to escape culpability.
The sections apply where: “5(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,” quoted the judge.
Justice Cherere agreed that Mr Hussein did not know that the girl was under 18, and consequently quashed the magistrate’s court decision.
“The defence under section 8 (5) of the Sexual Offences Act applies in this case, because the Complainant portrayed herself as an adult. The mere evidence that the complainant was 16 years did not confirm that she was below 18 years. I will thus allow the appeal only on that account,” she ruled.