• The girl was walking home at around 7 pm when she met the man who followed her, grabbed her hand and led her to his house.
• He looked her inside and went out but returned to defile her during which she lost consciousness.
When 15 year-old RWM left Karangatha shopping centre in Kinangop, Nyandarua County for home on April 15, 2022, being a victim of defilement was not something that she expected.
RWM was walking home around 7 pm when she met David Kamuto Wamaitha on the way. He was with someone else but the girl did not talk to them.
She continued walking but at some point, Kamuto who had apparently turned back, caught up with her.
He took hold of her hand and dragged her to his house, which was dark, partly because it was late and because it had no electricity and locked the scared girl inside.
With no way to get out, the girl stayed in the house until her captor returned and shamelessly began fondling her breasts and touching her private parts.
He would then remove her skirt, skintight and undergarment and defile her.
At some point during the act, RWM lost consciousness and when she awoke, it was morning and once again the house was locked from outside.
The girl would begin calling and Kamuto would open the door and threaten her against telling anyone of the unlawful and immoral act.
Scared of returning home, she went to another girl’s home. She later met her mother and narrated her ordeal.
She was taken to the hospital.
On the day the offence was committed, the girl’s mother had filed a missing person’s report at the police.
She did this when her daughter failed to return home by 7:30 pm.
Back at the hospital, the doctor would examine the minor and find that her broken hymen had both old and fresh wounds.
This was concluded that there was genital penetration.
Kamuto was arrested almost three months later on July 1, 2022, and arraigned.
When put on defence, he denied having committed the offence, claiming that on April 15, 2022, he was at his mother’s and he left at 10:30 pm.
He told the court that on the way to his home, he met a girl who told him she had been chased away.
Kamuto would then proceed to request his female neighbour to offer her shelter, but she refused.
He told the court that together with another man, they escorted the girl to her mother’s home but the minor ran away before the door was opened.
As he left for his home, the court heard, the girl would follow him home crying, and taking pity on her, he allowed her to sleep on his bed while he spent the night on his chair.
Kamuto said he left for work the following day and left his door open.
When he returned home, he found the girl playing with friends and he told her to go back to her mother’s home.
Three days later, he was arrested.
The trial court heard the evidence from four prosecution witnesses and Kamuto’s unsworn statement of defence.
An unsworn statement is evidence that is given without the obligation of an oath first being taken or an affirmation being made.
The court found him guilty of defilement contrary to the law and convicted him on the charge.
On November 8, 2022, he was sentenced to 15 years imprisonment.
Aggrieved, Kamuto appealed against the sentencing urging the court to consider his mitigation and provisions of Section 333 (2) of the Criminal Procedure Code (CPC).
Section 333 (2) of the CPC obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial.
Changing his earlier plea of innocence and owning to his wrongdoing, Kamuto told the High Court at Naivasha that he was remorseful, repentant and regretted his actions.
Kamuto urged the court to place him under community service.
Opposing the appeal, the state submitted to the court that the sentencing was lawful as the trial court had considered the man’s mitigation.
Judge Hedwig Ong’udi re-examined the case and found that the girl was born on June 19, 2007, making her 15 years and a minor on the night of the offence.
The court noted that the law in Section 8(3) of the Sexual Offences Act provides that, “A person who commits an offence of defilement with a child between the age of 12 and 15 is liable upon conviction to imprisonment for a term of not less than 20 years.”
“This is a penalty that is set out by statute. The appellant(Kamuto) was given a lesser sentence than what the statute provides,” the judge observed.
Noting that Kamuto had urged the court to consider the period he spent in remand custody, the judge found that it was four months.
This is considering that the man was arrested on July 1, 2022, and presented before the court on July 4, 2022.
This was four months before the judgment was delivered on November 8, 2022.
“Since the trial court already reduced his minimum statutory sentence by five years, I find no reason to make me interfere with it and so decline to consider his four months in custody,” Judge Ong’udi ruled.
Delivering the judgment on September 1, 2023, the judge found that the appeal lacked merit and dismissed it.
“The conviction and sentence are upheld,” the judgment read.
Kamuto will serve a 15-year- jail term for the offence of defilement contrary to the law.