Tale of eight-year-old girl defiled by father and how her pleas fell on deaf ears

As Jane's (not real name) mother would step out every day to sell porridge, her husband who was meant to protect their eight-year-old became her oppressor.

Jane would be left in the hands of a man who would defile her continuously leaving her biker stained with blood.

The convict would lay poor Jane down, apply oil on both their private parts and then defile her.

Jane tried reporting to her mother what the father was doing but the mother did not believe her.

The offence would take place on diverse dates between January 2009 and December 8, 2011, at Spring Valley in Kayole estate, within Nairobi.

Jane in her testimony before court said she decided to inform her neigbour about what the father was doing since her appeals to the mother fell on deaf ears.

The neighbor took her to the police where she reported the incident.

But her mother went and picked her up from the police and took her home.

She then ran away from home, after her father threatened to beat her for reporting the defilement to the police.

Fearful for her life, Jane went to Dandora where some children picked her up and took her to their home.

A doctor who examined the minor testified that Jane had pains in her anal area and could not sit or go for a long call without pain.

Dr. Purity Kajuju said her hymen was broken and the vaginal opening enlarged and reddened.

Jane's father who was tried by a Magistrates court was found guilty of the offence.

Magistrate A. R. Kithinji found that the prosecution had proved its case against him beyond reasonable doubt and consequently convicted and sentenced him after the prosecution called five witnesses.

He was sentenced to 21 years imprisonment.

Aggrieved, he appealed and High Court Judge Luka Kiamru dismissed his appeal.

In his defense before the appellate court, the father would deny committing the offence and shift blame to the grandfather.

He maintained that the minor had a habit of disappearing from home and he had taken her to their rural home to live with the grandmother.

He testified that it was the grandfather who had tried raping her and the minor's grandmother suggested she be returned to Nairobi.

According to him,  one day the minor disappeared from home and they reported it to the police. One week later, he was arrested and accused of committing defilement.

In his appeal, he pleaded with the court to consider that he is a young person who should be given a second chance in life to reform and rejoin his family.

Section 8 (2) of the Sexual Offences Act provides that a person who commits an offence of defilement of a child aged between eleven years or less shall upon conviction be sentenced to imprisonment for life.

If the law was strictly applied, it would mean that the father should have been handed life imprisonment but the trial magistrate sentenced him to 21 years in prison.

In dismissing his appeal, Court of Appeal Judges Agnes Murgor, Sanakel Ole Kantai and Mwaniki Gachoka said the man was lucky to be handed a 21-year sentence.

"Under the law, he ought to have been sentenced to life imprisonment and if there was a notice to enhance sentence, this would have been a proper case for us to enhance it,” said the Judges.

“For Mwnagi to try to reduce the sentence through an invitation for mercy or judicial craft, is stretching his luck too far,” they added.