A 17-year-old boy from Murang’a County who impregnated his cousin three years ago has lost his appeal against his sentence. Both the girl and the boy were at the age of 14 when they had sex.

The boy had appealed to the high court to notice that he was discriminated against since he was prosecuted alone although they were agemates at the time the offense was committed.

The boy argued that his trial was defective and discriminatory because his cousin was not charged with the same offense. He was convicted and committed to a borstal institution for a period of nine months followed by two years in probation.

The details of the charge were that they defiled the girl in 2017 when they were both 14 years old. The boy contended that, as a boy child, he was victimized by failing to also charge the complainant who had fairly defiled him.

The youth claimed that the trial was defective as it failed to assess his age contrary to section 143 (1) of the Children Act which states that where a suspect appears to be under 18, the court should make a due inquiry to ascertain the suspect’s age.

He says this was not done which makes his trial a sham. Justice Kanyi Kimondo disagreed with him stating that;

“When the appellant took a plea, the court noted that the appellant was a minor. In answer, the appellant said that he was 15 years. The court asked the prosecutor to provide a copy of his birth certificate. The certificate was placed on the court record on 20th August 2019.”

“The trial court was alive that it was dealing with a minor throughout the trial and sentence. It had even ordered for the appointment of a counsel before the appellant’s family secured the services of an advocate. The learned trial magistrate was equally cognizant that her sentence had to conform with section 191 of the Children Act,” Kimondo ruled.

Justice Kimondo also noted that the court sought an advocate for him before his family arranged a lawyer for him. He, therefore, disputed claims that the appellant failed to comprehend the proceedings and said that his own counsel examined all witnesses at length.

The girl in question had told police that in December 2017 the boy had forced her into sex on a number of occasions, but took a consensual stand after an earlier statement to appease her mother.

July 8, 2018 examination by a clinical officer revealed that she was 29 weeks. On September 29 of the same year, she bore a sickly child who later died after some months.

Justice Kimondo stated that this rhymed well with her proof that she had intercourse with him in December 2017. He also ruled that any suspicion of the defilement was entirely erased by the DNA record dated March 4, 2019, provided by Constable Anne Njeri, a police officer who examined the case.

“It concluded that there are 99.99 + % more chances that he MMM is the biological father to MK who is SWK’s child,” Kimondo said.

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