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organised for the defendant herein to be arrested and to be charged with the ofiences herein. According to the information that he received, the complainant herein was to be married ofi to the male person herein and that the meeting was for the purpose of discussing the said marriage. 5. At the police station, the matter was handled by PW3, No. 85XXXX PC Allan Sengeli who conducted investigations based on the information given by the children oficers and the complainant. 6. None of the witnesses were sure of the complainant's age. There was also no age assessment or any document produced as evidence of the age of the complainant. 7. At the close of the prosecution's case, learned counsel for the defendant, Mr. Chege, impressively summarised the issues for determination herein as follows: a. Whether the complainant was a child b. Whether the complainant was subjected to early marriage, c. Whether the defendant subjected the complainant to early marriage. (see page 47 of the handwritten proceedings) 8. On the first issue, learned counsel submitted that the issue of age is very important in a case such as the instant one given that 18 years is the age of consent. That one cannot also be termed as a child as defined in the Children's Act if she or he is 18 years old and above. That the complainant's age was never well established in the trial herein because the District Children Oficer's report indicated her age to be 14 years old, while the charges indicate that she was 17. On proof of age, learned counsel referred me to the High Court decision in Moses Ndau Mwarimba vrs Republic (2012) eKLR. 9. I have gone through the evidence of the witnesses as recorded herein. The defendant herein has been charged with ofiences under the Children Act No. 8 of 2001. Section 2 of the said Act defines a child to mean any human being under the age of 18 years. It therefore means that in an ofience involving a child under the said Act; the age of the person alleged to be a child must therefore be proved to be under 18 years. 10. Such proof of age normally comes from the birth certificate or, as held in the case of Moses Ndau Mwarimba vrs Republic, supra, other documents like baptism cards, vaccination cards, school records etc. I also do add that oral evidence by persons who were present when the person was being born, such as the parents, midwives etc, may also be admissible as evidence of the age of that person. 11. There was no such evidence herein. The oral evidence on the probable age of the complainant herein was also contradictory that it may not also be relied upon. The complainant on her own, cannot be said to be able to remember her age, or when she was born without any other evidence to corroborate the same. Her account of her age is basically hearsay. The other witnesses are also not competent to determine the age of the complainant herein. PW3, the Investigating Police Oficer, in fact candidly admitted that he could not remember the age of the complainant (see page 38 of the handwritten proceedings) and also that the age of the complainant was not established (see page 41 of the handwritten proceedings). 12. The failure to prove the age of the complainant herein goes to the core of the charges facing the defendant herein. This failure is fatal to the prosecution's case as it cannot be said that the prosecution has been able to prove to the required standard of beyond reasonable doubt at the close of its case that the complainant herein was a child within the meaning of section 2 of the Children Act. It has not therefore been established to the required standard if she was protected by the provisions of section https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/11/eng@2014-08-12 2

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14 of the Children Act, or any other section in the Act; or whether she could be in need of care and protection as a child within the meaning of section 127 of the Children Act. 13. An essential ingredient of the ofiences herein is therefore missing herein. To call upon the defendant to make her defence, will be tantamount to shifting the burden of proving that the complainant herein was a child; or disproving the same on her. That shall not be proper in a criminal trial where the burden of proof rarely shifts to the defence. I do not find any such rare circumstances to warrant me to shift that burden herein. As correctly pointed out by the learned defence counsel in his submissions at the close of the prosecution's case, this failure to properly prove the age of the complainant herein, shall not make me to convict the defendant herein on any of the charges herein, if at all she exercises her right to remain silent in her defence. 14. For this sole reason, I do find that no prima facie case had been disclosed to require me to call upon the defendant herein to make her defence as required under section 211 of the Criminal Procedure Code. 15. The other 2 issues are therefore not necessary herein as they relate to a child, a fact which has not been proved to the required standard herein. 16. Learned counsel did not however note or raise the fact that the defendant herein appears to have been subjected to double jeopardy by being charged with separate ofiences that emanate from the same act or fact. Whether the charge in count II herein was proper and necessary in addition to the ofience in Count I, requires the interpretation of the proviso to section 127 (1) of the Children Act. I shall however not delve into the interpretation, given my findings on the evidence adduced herein. 17. All the charges against the defendant herein are however hereby dismissed under section 210 of the Criminal Procedure Code and I consequently acquit her of the ofiences of Subjecting a Child to Early Marriage and Causing a Child to be in need of Care and Protection contrary to sections 14 and 127(1) (b) of the Children Act No. 8 of 2001, respectively, and as charged herein. DATED, SIGNED AND DELIVERED IN NYAHURURU IN OPEN COURT THIS 12TH DAY OF AUGUST, 2014 ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Milka Prosecutor: N/A Defence counsel: Chege Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/11/eng@2014-08-12 3

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