Kumbe ni under 18: Age doubts saves man from 10 years in jail

Jimwat’s famous lyric, “Kumbe ni under 18! Sa mi ningejuaje? Nitambiaje jaji” (“Oh, so she is under 18! How could I have known? What will I tell the judge?”), mirrors the predicament that befell Baya Mitsanze, who narrowly escaped a 10-year prison sentence after the High Court found uncertainty over the age of the girl he was accused of defiling.

For a bottle of beer and an alleged Sh15,000 dowry, Mitsanze was said to have married a girl identified only as MK. She told the court she was 17 when they began living together and later became pregnant.

He was arrested, charged with defilement and convicted by Malindi Chief Magistrate James Mwaniki, who sentenced him to 10 years’ imprisonment. MK’s father was separately charged with exposing his daughter to child marriage.

The prosecution alleged the offence occurred between January and July 2023. However, those dates became central to the appeal because they suggested MK may already have turned 18 by the time she had sexual intercourse with Mitsanze.

On appeal, Justice Nyagah Njagi quashed the conviction after finding that the prosecution had failed to prove beyond reasonable doubt that MK was under 18 at the time of the alleged offence.

A dental surgeon at Malindi Sub-County Hospital estimated her age at 17 after examining X-rays of her wisdom teeth. However, the expert acknowledged a margin of error of one year either way.

MK’s father, meanwhile, testified that she was born on April 20, 2005, meaning she had turned 18 before the alleged offence. His evidence was supported by a teacher, who produced school admission records showing the same date of birth.

Justice Njagi noted that although no birth certificate or other conclusive documentary evidence was produced, the father’s testimony was consistent with MK’s own admission that she had turned and celebrated 18 in 2023.

The judge also observed that the dental assessment was inconclusive because of its acknowledged margin of error. “There was no foolproof evidence that the complainant was below the age of 18 years at the material time. The appellant was therefore entitled to the benefit of doubt,” Justice Njagi ruled.

While the judge overturned the conviction on the question of age, he upheld the trial court’s finding that sexual intercourse had occurred.

Justice Njagi found MK to be a truthful witness and rejected suggestions that she had fabricated the allegations. “It is not possible that the complainant would have fabricated all this evidence that even implicated her father in marrying her off to the appellant. She had no reason to lie against her father,” he said.

However, several members of MK’s own family gave evidence that contradicted parts of the prosecution’s case.

Her father described her as having several boyfriends and said she had introduced Mitsanze to the family as the man she wished to marry. He denied receiving the alleged Sh15,000 dowry, insisting Mitsanze only gave him Sh2,000 to help MK obtain a national identity card.

MK’s brother also disputed her account, saying she had never complained of being forced into marriage. Instead, he testified that she had previously alleged being assaulted by another man identified as Mutiso.

Her grandmother testified that MK had numerous admirers. “I lived with my granddaughter for five years and noted that she liked men. Men used to fight over her,” she told the court.

An aunt gave similar evidence, saying she once found MK with a man in her house in Mombasa and sent her away.

According to MK, she met Mitsanze while working as a waitress at a hotel in Gede after completing the Kenya Certificate of Primary Education (KCPE). Unable to afford secondary school, she said Mitsanze, a regular customer, offered to help her enrol at a local polytechnic. He gave her Sh850 to collect her academic certificates from home, but she returned claiming both her KCPE certificate and birth certificate had been lost.

She told the court that Mitsanze later began giving her money and gifts before visiting her parents to seek permission to marry her.

She testified that after her father left, Mitsanze undressed her, performed oral sex on her and had sexual intercourse with her. She ran away the following day, but claimed her father returned her to Mitsanze, where they had sex again.

Police later rescued her from Mitsanze’s home after a neighbour alerted the Watamu Assistant Chief. She was taken to a children’s home, where medical examinations revealed she was four weeks pregnant.

In his defence, Mitsanze denied marrying or defiling MK. He claimed she pursued him after he offered to help her continue her education and maintained she had told him she was 18. He further argued that the pregnancy resulted from other sexual relationships and alleged the accusations arose after he abandoned plans to marry her because of what he described as her promiscuity.

Ultimately, the High Court concluded that although sexual intercourse had been proved, the prosecution failed to establish one essential element of the offence , that MK was under 18 at the material time.