A man got a reprieve for the second time after an appeal by the state against his acquittal of a defilement charge was dismissed by the High Court.
Justice Said Chitembwe upheld a decision by a magistrate’s court to acquit P K saying circumstances of the case showed he (PK) might have believed the girl was over eighteen years.
“They were lovers and had sex whenever the two agreed to have it,” said Justice Chitembwe sitting in Malindi.
PK is alleged to have defiled the 17 year old minor on January 1, 2012 at a village in Gede location, within Kilifi County.
Justice Chitembwe added that given the evidence, the 17-year-old minor took herself like a mature girl, went to church for overnight prayers to welcome the New Year with her family members but sneaked out to have sex with PK.
“I find that the defence under section 8 (5) of the Sexual Offences Act comes to the rescue of the respondent, I agree with the findings of the trial court that the prosecution did not prove its case beyond reasonable doubt,” said the judge while dismissing the appeal by the state.
The state had appealed against the acquittal of PK by the lower court on the grounds that the magistrate erred in law and fact by acquitting him against the weight of evidence.
It also said that the prosecution was not given ample time to call a doctor without any reason and that the trial court erred in law by overlooking the alternative charge.
According to prosecution, the girl was a primary school pupil and had gone to church for overnight prayers with her two sisters, two aunties and another relative.
As other people entered the church for a service that was scheduled for 10pm, she remained outside before PK approached, held her hand and together went to a club on a motor bike.
The trial court was further told that the minor stayed outside the club and the respondent went in shortly, came out and they went ‘somewhere’ had sex before she returned to church.
SEX IN FOREST
Later after five months, the court heard that while on her way to Gede, she met PK and they had sex in a forest.
The girl later realized that she was pregnant and the matter was reported to the police upon which she was taken for age assessment and medical examination.
In his sworn defence during the trial at the magistrate’s court, PK testified that he was a welder and electrician living in Watamu and denied having sex with the minor.
The lower court evaluated the evidence and concluded that the case was not proved beyond reasonable doubt.
The High Court observed that the problem arose when the minor became pregnant and that there was no evidence that she was lured to the act by PK.
“It is evident that the minor opted not to enter the church after having gone there with her sisters and other relatives and went to have sex with the respondent, she knew what she was doing and was behaving just like an adult,” said Justice Chitembwe.
The judge said the trial court observed that the case was adjourned six times to enable the doctor testify but did not hence he found the prosecution was accorded ample time to prove its case.