A 26-year-old herdsboy who had been serving a jail term for defiling a teen has been freed by the Court of Appeal after judges found out that the sex was consensual.
During the hearing, it emerged that the accused, Evans Wanjala Siibi, was jailed by the magistrate’s court while he was 17 years for defiling a girl named in court papers as SMS.
“Once again the unfair consequences of a skewed application of that statute predominantly against the male adolescent is quite apparent: two youths caught engaging in sex receive diametrically opposite treatment,” the judges ruled.
According to the judges, Siibi’s incarceration was wrong, since at the time of the offense, he was just a child who was jailed with adult offenders.
She was two years younger than him. Mr Siibi was slapped with 20 years in jail.
The judges observed that he ought to have been counselled alongside his young lover.
At the same time, the court noted that Siibi defended himself as the case proceeded in all the three courts.
The judges said it was unfair that no one counselled him to take up the services of a State lawyer, since he could not afford a private one.
During the proceedings, the court heard that Siibi was caught in the act with SMS in 2010.
The girl testified that she and Siibi had sex three times before they were caught by her mother.
While making the ruling, judges Patrick Kiage, Otieno Odek and Asike Makhandia raised concern that the Sexual Offence Act could be skewed against the boy child.
It is the same court that in March this year proposed a change in the law to lower the age of consent to 16 years.
CS Interior Fred Matiang’ i brushed off the proposed age of consent, terming it as madness.