How boy, 12, was tricked and defiled in Kariobangi

A boy code-named PM was walking home when he met a man who would later defile him at around 6 pm on October 22, 2019.

The 12-year-old PM  had gone to see his friend but when he didn't find him, he decided to return home to Kariobangi North Estate of Nairobi.

On his way back, he would see a man burning rubbish at the bridge, the man, later identified as Benson Mugo Njurai would beckon the boy over. 

He would then engage the minor in a conversation, asking him his name, where he lived and what he was doing alone.

As they continued talking, Njurai would ask the boy to wait at the place as he went behind a huge heap of garbage.

After a while, returned with crushed smokies, which he offered to PM who declined. 

He would then ask PM to keep him company and help him burn the rubbish.

To ensure that the boy stayed, Njurai would convince him that if he left alone, he could encounter robbers.

As time went by, the man would then spread gunny bags and tell the minor to sleep, which he did but awoke later in shock to find the man removing his trousers. 

When the boy, confused, resisted, the man removed a knife from his pocket and ordered him to keep quiet.

He would then defile him and after the vile act, he ordered the boy to sleep inside a makeshift structure made of boxes.

With no other place to turn to as it was still night, the boy complied.

This was not the end of his rough night as the man would defile PM a second time and this time, he would warn the boy not to tell anyone lest the man killed him. 

Come dawn, Njurai would order the boy to leave.

Finally getting an out from his ordeal, PM would go to a nearby dispensary where he sought help

When his mother, JSM was contacted, she took her son to MSF Hospital where he was examined and treated.

The examination established that the boy had an anal tear, and a P3 Form was filed which confirmed the injury sustained.

A P3 Form is a legal document produced in court as evidence in cases which involve bodily harm. 

The matter was reported to the police and the boy took three officers to the scene where the defilement happened, identified Njurai.

The man would then be arrested and taken to Kariobangi police station, and investigations were carried out that culminated in arraignment.

In mitigation, Njurai told the Chief Magistrate's Court Makadara that he was innocent of the offence, saying he was arrested without explanation for the same.

He also told the court that "he had no idea that it was an offence to sleep with a child."

The court also heard that at the police station, after his arrest, he was informed of the allegations of defiling a child.

He argued that they should not have taken PM seriously.

The court found him guilty, convicted him of the offence of defilement and on July 29, 2022, Njurai was sentenced to serve 20 years imprisonment.

He, however, challenged the trial court's decision saying his identification on October 22, 2019, was not proper and that penetration was not proved.

He also argued that there were material contradictions, inconsistencies and incoherence that made the case deficient.  

The prosecution, however, opposed the appeal, saying PM had identified the man as his assailant, having seen him with the aid of street lights.

Njurai had also argued that the question of penetration of PM's genitalia was not conclusively proved.

He claimed that sometimes children behave in a way that is beyond their age by consenting to sexual offences then deny having consented and, may even make false accusations.

After reviewing the case, Milimani Law Court's Judge Lilian Mutende found that the P3 Form was proof of penetration having occurred.

On the question of identification of the assailant, the court established that since PM was alone with the perpetrator of the act, the evidence tendered was of a single witness.

It also took into consideration the presence of street lights, the burning fire and PM having spent the whole night till dawn on October 23, 2019, with Njurai.

"The evidence of the complainant (PM) of having slept with the appellant (Njurai) the whole night until dawn was supported by the fact of the appellant’s argument in his evidence before conviction that he had no idea that sleeping with a child was erroneous," the court noted.

Judge Mutende said this being the case, the trial court was justified in believing PM.

The court noted that the mandate of the court was to dispense justice not only to the complainants but also to the accused persons. 

It further said unless the circumstances demanded so, courts should not be constrained to impose the provided sentences.

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 years is liable upon conviction to imprisonment for a term of not less than 20 years."

Delivering her judgement, Judge Mutende revised the sentence imposed, subtracting five years. 

"I set aside the sentence imposed of 20 years imprisonment that I substitute with 15 years imprisonment," she said.

The judge ordered that the sentence be backdated to when Njuria was arrested on October 25, 2019.