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MagistrateDismissedNot stated in the judgment· [2024] KEMC 95 (KLR)

Republic v BMK (A Minor) (Sexual Offence E018 of 2023) [2024] KEMC 95 (KLR)

Magistrates' Court (Criminal)
28 May 2024
TST.A. Sitati
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court acquitted a teenage boy of defilement because both participants were minors and only he was charged, which is unconstitutional sex discrimination.

What this practically means

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Executive summary

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The Subject, B.M.K., was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, with an alternative count of committing an indecent act with a minor contrary to section 11(1), arising from sexual intercourse over three days (14th-16th December 2023) in Imenti Central Sub-County with a 13-year-old girl. The complainant (PW1) testified that B.M.K. was her boyfriend and that she voluntarily went to his house over 5 kilometres away and engaged in voluntary sexual acts before returning home on her own. Her mother (PW2) reported the matter to police after the girl went missing for three days. A Senior Clinical Officer (PW3) produced treatment notes and a P3 Form showing no genital injuries and no spermatozoa, and the investigating officer (PW4) produced the birth certificate confirming the complainant's age. At the close of the prosecution case, the court considered whether a prima facie case existed. It found that both participants were minors under the Children's Act, neither capable of consenting, and that both shared equal blameworthiness. Applying POO (a Minor) v DPP & anor and G O v Republic, the court held that selectively charging the male minor was discriminatory and unconstitutional under Article 27. The accused was found to be a concurrent victim, had no case to answer, and was acquitted under section 210 of the Criminal Procedure Code, with 14 days' right of appeal.

Key legal issues

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Whether the male minor accused could be charged alone when both minors engaged in the sexual activity

Holding

The accused was a concurrent victim of the alleged sexual transaction and has no case to answer; both minors shared equal blameworthiness and both ought to have been charged.

Reasoning

The court found that the female minor voluntarily left home, travelled over 5 kilometres, and voluntarily had sexual intercourse with the male minor over three days. Both were teenagers and minors under the Children's Act, so neither could legally consent. Following POO v DPP and G O v Republic, charging only the male minor discriminates on the basis of sex contrary to Article 27 of the Constitution, so the charge against him alone was unlawful.

p. 3

Legal principles established

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  • Where both participants in a sexual act are minors, neither has legal capacity to consent, and charging only the male minor where blameworthiness is equal is unlawful and unconstitutional discrimination on the basis of sex.

Court orders

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  1. 1.The Subject is found to have no case to answer
  2. 2.The Subject is acquitted of the charges under section 210 of the Criminal Procedure Code
  3. 3.Right of appeal is 14 days

Authorities

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Legislation

  • Sexual Offences Actsection 8(1) as read with section 8(2)
  • Sexual Offences Act No. 3 of 2006section 11(1)
  • Criminal Procedure Codesection 210
  • Children’s Actdefinition of minors
  • Constitution of Kenya, 2010Article 27

Cases cited (2)

  • POO (a Minor) v DPP & anor
    [2017] eKLR
  • G O v Republic
    [2017] eKLR
Jurisdiction invoked
Original criminal jurisdiction under the Criminal Procedure Code and the Sexual Offences Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v BMK (A Minor) (Sexual Offence E018 of 2023) [2024] KEMC 95 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/95/eng@2024-05-28

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