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MagistrateOtherNot stated in the judgment· [2023] KEMC 278 (KLR)

Director of Public Prosecution v Kuazwa (Sexual Offence 037 of 2019) [2023] KEMC 278 (KLR)

Resident Magistrate's Court at Kwale

14 August 2023

KKKiongo Kagenyo

2,818 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kwale court convicted a man of defilement, ruling that 'she looked older' is not a defence unless you actually checked her age.

What this practically means

Executive summary

The accused was charged with defilement of a 16-year-old girl contrary to section 8(1) as read with 8(4) of the Sexual Offences Act, with an alternative count of committing an indecent act with a child, arising from a sexual relationship between late July 2018 and February 2019 in Kwale County which resulted in a pregnancy. The prosecution called six witnesses. Age was proved by an unchallenged birth certificate showing a date of birth of 21st February 2003; penetration was established by the complainant's testimony, the accused's own admission of intercourse, medical evidence (P3 form) and a DNA report confirming 99.99+% paternity; identification was not in doubt since the accused had lived in the complainant's house. In unsworn evidence the accused admitted intercourse but raised the statutory defence under sections 8(5) and 8(6) of the Sexual Offences Act, claiming the complainant misled him as to her age, relying on her physical build. The court, applying Court of Appeal and High Court authorities, held the accused bore an evidential burden to demonstrate deception and steps taken to ascertain age. The defence was dismissed as an afterthought - the accused had not contested the age when supplied with the birth certificate - and mere physical appearance could not amount to deception by the child. The accused was convicted under section 215 of the Criminal Procedure Code on the main count; the alternative count was left undetermined; the accused was informed of his right of appeal to the High Court within 14 days and the matter was set for a sentence hearing on 15th August 2023. No sentence had been passed as at the date of the judgment.

Key legal issues

Age of the complainant

Holding

Age of 16 years proved beyond reasonable doubt by a Certificate of Birth (P. Exh 2) whose authenticity was never challenged

Reasoning

A Certificate of Birth produced as P. Exh 2 indicated the complainant's date of birth as 21st February 2003, making her 15 years 5 months at 31st July 2018 and 16 years 7 days at 28th February 2019. The accused never attacked the authenticity of the document or any entry in it, so the element of age was proved beyond reasonable doubt, bringing the charge under sections 8(3) and 8(4) of the Sexual Offences Act.

p. 3

Penetration

Holding

Penetration proved beyond reasonable doubt by the complainant's evidence, the accused's own admission, the medical evidence (P3 form) and a DNA paternity report confirming the accused fathered the complainant's child

Reasoning

Both the complainant (PW1) and the accused (DW1) admitted frequent sexual intercourse; PW5's medical examination concluded there had been penetration; a DNA test under section 36 of the Sexual Offences Act confirmed 99.99+% paternity by the accused of the complainant's child. With no suggestion of any IVF or scientific procedure, the court found penetration proved beyond reasonable doubt.

p. 3

Positive identification

Holding

Identity not in doubt; the accused admitted an intimate relationship and had lived at the complainant's house

Reasoning

The complainant described an intimate relationship with a person she knew in great detail; the accused confirmed the relationship and acknowledged fathering the child born of it. There was no possibility of mistaken identity and the court so found.

p. 3

Statutory defence of deception as to age under sections 8(5) and 8(6) of the Sexual Offences Act

Holding

Defence rejected: it was an afterthought, the accused took no steps to ascertain age, and mere physical appearance does not amount to deception by the child

Reasoning

Applying Eliud Waweru Wambui v Republic, Irene Atieno Ochieng v Republic and Royton Muriungi Kirimi v Republic, the court held the accused must show deception and reasonable belief. He failed to challenge the age when the birth certificate was supplied, took no steps to verify age before intercourse with a primary school child, and the 'big body' observation was not a positive act of deception by the complainant. The defence was therefore an afterthought failing the statutory threshold.

p. 5

Legal principles established

The defence under section 8(5) of the Sexual Offences Act places an evidential burden on the accused to demonstrate the steps he took to ascertain that the complainant was not a child
Deception by physical appearance alone, without positive deceptive action by the child, does not satisfy the statutory defence

Court orders

1.The accused is found guilty and convicted under section 215 of the Criminal Procedure Code for the main count of defilement of a child aged 16 years contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act
2.The alternative count of committing an indecent act with a child is left undetermined, having made a finding on the main count
3.The accused is informed of his right to appeal against the judgment and conviction to the High Court within 14 days
4.The matter to be slated for sentence hearing on 15th August 2023

Authorities

Legislation

Sexual Offences Act No. 3 of 2006section 8(1)(4), 8(1), 8(3), 8(4), 8(5), 8(6), 11(1), 36
Evidence Actsection 107
Criminal Procedure Codesections 210, 211, 215
Constitution of KenyaArticle 50(2)(i)

Cases cited (3)

Eliud Waweru Wambui v Republic
[2019] eKLR
Irene Atieno Ochieng v Republic
[2017] eKLR
Royton Muriungi Kirimi v Republic
[2020] eKLR

Jurisdiction invoked: Criminal jurisdiction of the magistrates' court over an offence under section 8 of the Sexual Offences Act No. 3 of 2006; accused informed of right of appeal to the High Court under section 348 of the Criminal Procedure Code

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Director of Public Prosecution v Kuazwa (Sexual Offence 037 of 2019) [2023] KEMC 278 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/278/eng@2023-08-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.