Hamisi v Republic
The bottom line
#Kenya's High Court ruled that sex with a 13-year-old must be charged as defilement, not rape, because a child cannot legally consent.
What this practically means
#Executive summary
#Key legal issues
#Proper charge where complainant is under 14 years
Rape is a misconceived charge where the complainant is under 14; defilement under section 145(1) is the appropriate charge, consent being legally irrelevant.
The complainant was 13 years old, a fact known to police from the P3 form, and her appearance led the magistrate to treat her as a child of tender years under section 124 of the Evidence Act. Section 145(1) criminalises carnal knowledge of a girl under 14 irrespective of consent. The magistrate therefore misdirected himself in trying the appellant on a rape charge requiring proof of lack of consent.
Essential ingredients of defilement
Age under 14 must be proved; consent does not provide a defence.
The court set out the ingredients of defilement: proof that the girl defiled was under 14 years, and that her consent to proven intercourse is immaterial because by virtue of her age she is legally incapable of consenting. The appellant's defence of a consensual relationship with the 13-year-old complainant therefore could not avail him on a defilement charge.
Legal principles established
#- The essential ingredients of a defilement charge are that the girl is under 14 years and consent is irrelevant, a girl under 14 being legally incapable of consenting.
- Where the complainant's known age is under 14, a rape charge premised on lack of consent is inappropriate; the proper charge is defilement under section 145(1).
Court orders
#- 1.Conviction on the charge of rape contrary to section 140 of the Penal Code quashed.
- 2.Sentence set aside.
- 3.Retrial of the appellant directed on a charge under section 145(1) of the Penal Code (defilement).
- On appeal from
- Resident Magistrate's Court, Kwale
- Jurisdiction invoked
- First appellate jurisdiction over convictions of subordinate courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi v Republic", Case Analysis (1991). Criminal Appeal No 388 of 1990. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.