A man has lost his appeal against a 20-year prison sentence for defiling a schoolgirl who became pregnant.
The High Court in Malindi dismissed the appeal by Masha Mkutano Kitsao, who was convicted of defilement.
The offences took place between February and July 2024 in Rabai subcounty, Kilifi county.
The court heard that Kitsao approached the complainant, a Std 8 pupil living with her grandmother and seduced her. She was 15 years old at the time.
“It was the evidence of the complainant that sometime in February 2024, the appellant approached her and seduced her. They became lovers. In March 2024, they started to engage in sex in his house,” court documents show.
The complainant told the court she discovered she was pregnant in June.
“Her grandmother was informed, who informed her parents…Her parents took her to Mariakani subcounty hospital and reported to the police.”
Following the formal report, Kitsao was arrested at his workplace and later faced trial, during which it was revealed that the complainant had suffered a miscarriage.
In his original trial and subsequent appeal, Kitsao attempted to secure an acquittal by claiming he was misled about the girl’s true age and that he reasonably believed she was of age.
“The appellant, when placed to his defence, stated in a sworn statement that he seduced the complainant in the year 2024 and she became his girlfriend. That she told him that she was 19 years old," he said.
Kitsao told the court he had ended the relationship by the time he was arrested.
He also contended that the clinical officer who presented the P3 form in court, was not the actual author of the document.
The appellant argued the trial court should have granted him the benefit of the doubt due to the prosecution's failure to call the author of the document as a witness.
Further, Kitsao said he was entitled to the statutory defence provided under the Sexual Offences Act, noting the complainant confirmed the existence of their romantic relationship. He additionally argued that the complainant took an unreasonably long time to report the matter to the police.
The appellant submitted that the 20-year prison sentence imposed by the trial magistrate was excessively harsh.
The state disagreed, holding that all ingredients of the offence of defilement had been proved beyond reasonable doubt. The respondent also submitted that the 20‑year sentence was lawful.
Justice Jesse Njagi, in delivering the ruling, noted that Kitsao failed to satisfy the legal criteria required to claim he was genuinely deceived.
“The evidence of the complainant was that the appellant was her boyfriend since February 2024. Though the appellant in his defence admitted as much, he raised a defence that the complainant had told him when they started the affair that she was aged 19 years,” the judge noted.
“He stated in cross-examination that she never told him that she was in school. That he never asked her for any document to prove her age. He stated that they were living in the same village.”
Justice Njagi found it highly improbable that Kitsao would be oblivious to the fact that the girl attended the local primary school, which strongly indicated she was a minor.
The judge observed that the complainant’s child immunisation card, produced as evidence, showed she was born on April 27, 2009, making her 15 years old at the time of the offences.
“The appellant did not prove that he took any step to ascertain the age of the complainant…In my view, a child immunisation card showing the date of birth of a child is a credible way of proving the age of the child."
On the issue of the medical evidence, the judge noted that while the clinical officer who testified was not the one who filled the P3 form, he had attended to the complainant and prepared the Post Rape Care form on which the P3 was based.
The judge further observed that the appellant was represented by an advocate during the trial, yet counsel never asked the complainant in cross-examination whether she had deceived him about her age.
Regarding the sentence, the judge upheld the 20-year term as the minimum sentence prescribed by law for defiling a child.
“A minimum sentence cannot be said to be harsh. The sentence is thereby upheld.”
