By: FAITH NYAMAI
A man has been freed from a 20-year jail term for defiling a 14-year-old girl after the court ruled that the teenager was his wife.
Mr Duncan Mwai Gichuhi, 24, had been living with the girl as husband and wife and the court found that she offered to have sex with him.
Mr Gichuhi had been arrested on November 22, 2009, at Maragi Village in Kieni West and convicted on October 29, 2010.
“Both the girl and Mr Gichuhi admitted they were living as husband and wife,” Mr Justice John Mativo ruled on Wednesday.
He also noted that the girl’s mother told the court she and her husband searched for their daughter and found her at Mr Gichuhi’s grandmother’s house.
The girl’s father told the court his daughter was living with Mr Gichuhi as husband and wife.
The judge also noted that Mr Gichuhi, during his defence, said he had befriended the girl for a long time and she used to love him too much such that she would visit him at his home during day time.
Mr Gichuhi also testified that she had told the girl to finish her primary school education and that is when she went to inform his parents that she wanted to get married.
Before his arrest, they had stayed with the girl for eight days.
The judge said it is clear that “at the time the girl had carried clothes in a bag and went to live with Mr Gichuhi”.
“Mr Gichui’s father went accompanied by two elders to the girl’s family and her father demanded a beer and they agreed that the girl and Mr Gichui, together with the elders would go to the girl’s homestead on a Tuesday to tell them what she wanted,” he said.
He went on: “But that Tuesday never came, police in company of the girl’s parents raided the appellants home at night and arrested him.”
Mr Justice Mativo said there was nothing to show that the girl’s parents raised the issue of age during the discussions they had with the accused person’s parents.
The prosecution, however, had submitted that the girl had no capacity to give consent to the marriage or the alleged defilement on account of her age and said ignorance is no defence.
Mr Justice Mativo said the magistrate’s court did not comply with certain provisions of law and set aside the conviction.
“I hereby allow the appeal, quash the conviction and set aside the sentence imposed and order that the appellant be released forthwith unless otherwise lawfully held,” read the judgment.
Mr Gichui, through lawyer Wahome Gikonyo, had appealed against his conviction by a magistrate’s court.
He had been charged that between November 22, 2009 and December 1, 2009 at Maragi Village in Kieni West, he intentionally and unlawfully defiled a girl under the age of 18 years.
The girl had also written to the Director of Public Prosecutions on December 3 last year asking that her husband be released to enable them to raise a child that was born out of their relationship then.
Family members, who were present in court, turned into celebrations after Mr Gichui was released.
Mr Gichuhi had served six years at King’ong’o prison.
SOURCE: DAILY NATION