A judge has ruled that where minors engage in sex, both the girl and the boy should be charged with defilement.
High Court judge James Makau made the finding in an appeal by a 16-year-old primary school boy who had challenged a 15-year jail sentence for defiling a 17-year-old-girl.
The judge said it was discriminatory by the magistrates’ court to imprison the boy, yet both were minors who could not give consent for sex.
His view was that since the girl in the case is older than the boy, the blame ought to have been apportioned between the two. He pointed out that both ought to have been charged with defiling each other.
“I find that the appellant was discriminated against on the basis of gender in that he was arrested and charged instead of the prosecution charging both the complainant and the appellant for the offence of defilement,” said Justice Makau.
He added: “I find that at the time of the commission of the offence, both the appellant and the complainant were minors. I find indeed that the complainant was senior in age to the appellant and the blame should not have been wholly shifted to the appellant but should have been apportioned against both the complainant and the appellant, both being minors.”
The boy was charged with defilement in October last year. He also faced an alternative charge of committing an indecent act with a child.
The court record read that the offence happened for three days—between October 18 and 21 last year.
After the charge, the boy admitted to having had sex with the girl and the magistrate slapped him with 15 years in jail on his own plea of guilty.
The boy appealed, complaining that he was intimidated and confused during the time of the reading of the charge sheet in the lower court. He also testified that he was a Class Seven pupil.
The State conceded to the appeal, saying the boy was a minor although the charge sheet indicated that he was aged 18.
The judge said that it was illegal to condemn the boy, adding that both the accused and the complainant ought to have instead been placed under counselling to change their behaviour.
“It is an illegal sentence, and should not have been imposed against the appellant at all. I find no justification of the trial court in imposing a sentence against the appellant to serve 15 years for an offence of defiling a girl who was older than the appellant as she was 17 years old.
“In this case, the court should have noted that both the appellant and the complainant were minors and both deserved to be placed under the care of a qualified counsellor or the court should have found that the appellant needed guidance instead of ordering him to be imprisoned for 15 years,” he said.
The judge quashed the sentence and ordered that the boy be placed under probation for six months. By the time of release, he had already spent five months in jail.