A 32-year-old man was yesterday sentenced to life imprisonment by an Eldama Ravine Court for defiling a seven-year-old orphan.
Moses Kimutai who hails from Oterit in Mogotio, Baringo County was found guilty of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act no. 3 of 2006.
Kimutai was accused of intentionally and unlawfully defiling a child aged seven years old on the 13th day of September 2022 at Oterit village in Mogotio Sub-county within Baringo County.
The prosecution, led by State Counsel Rebecca Mayeku told the court how the accused waylaid the minor on the road next to her home while she was fetching firewood and led her to a nearby thicket where he committed the unlawful act.
The girl’s screams drew the attention of her sister, who, worried that she had taken too long in her firewood fetching duty, rushed to her rescue and found the accused on top of the young girl.
The sister screamed and drew the attention of their aunt who rushed to the scene and subdued the accused until members of the public arrived. They called the area chief who arrested the accused and took him to Emining police station for booking.
After examining the testimony of six witnesses, Eldama Ravine Senior Resident magistrate Alice Towett found that the prosecution’s case had satisfied the three ingredients of a defilement case namely, identification, penetration and the age of the victim.
“Section 8(2) of the Sexual Offenses Act under which the accused is herein charged provides that a person who commits an offense of defilement with a child aged eleven years or less should be sentenced to imprisonment for life,” said the Magistrate
She further explained her judgment, “upon analysis of each ingredient of the offense independently, I found that it was very clear to the court that the PW1, PW2, and PW3 who are the victim, the sister and the aunt respectively and the accused are well known to each other by the fact that the accused was engaged by the aunt to dig a pit latrine for her.”
Towett added that the accused was identified at the scene of crime where he was caught in the act by the sister of the victim whereas the aunt found him with his long trousers unzipped.
On the ingredient of penetration, the magistrate noted that the testimony of the three witnesses corroborated with that of the clinical officer, Winrose Kigen, who examined the victim and found torn hymen and tear on the labia minora of the victim thus properly establishing the ingredient of penetration.
The Magistrate further relied on the birth certificate of the minor presented in the court that proved the victim was seven years at the time of the offense and the fact that the accused did not dispute the age of the victim.
The court found out that the defense by the accused who claimed that the charges were fabricated against him by the aunt of the minor after he had gone to demand for payment of Sh2100 owed to him for digging a pit latrine could not poke holes in the watertight case by the prosecution.
Towett further stated that the accused was caught red-handed by the sister and the aunt of the victim where he was arrested and the visit to the scene by the police also established that the ground was disturbed, evidence that there had been a struggle between the victim and the accused.
“The prosecution has established all the ingredients of charges of defilement and I have no doubt in my mind that the accused is guilty as charged as the prosecution has proved its case beyond reasonable doubt. I now proceed to convict the accused under section 8 (1) as read with section 8(2) of the Sexual Offenses Act no. 3 of 2006,” noted the Magistrate.
Considering the mitigation by the accused that he has young children who depended on him, Towett said she took into account that the victim is an orphan who lives with her siblings none of whom is 18 years old.
“The accused took advantage of the fact that the victim is an orphan with no one to protect her. It is the duty of the court to ensure that everyone including orphans gets justice, further the offense before the court is rampant and calls for a deterrent sentence,” said the magistrate in her ruling.
By Christopher Kiprop
