Lowering age of consent.doc

Lowering age of consent.doc - THE QUESTION OF CONSENT AGE...

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THE QUESTION OF CONSENT AGE IN KENYA THROUGH THE CASE OF ELIUD WAWERU v REPLUBLIC (2019) Eklr. CASE BRIEF Brief Introduction . It's a chilly morning at the Supreme Court of Kenya building where three judges of the court of appeal reversed a 15 years sentence of one Eliud Waweru who was charged and convicted of defiling a 17years old girl(as she then was) nearly a decade ago. Aggrieved by the chief magistrates' decision, Mr. Eliud Waweru (hereafter Appellant) moved to the high court and challenged the decision. High court judge Hon Justice Achode in his wisdom dismissed the appeal for lack of merit prompting the appellant to move to Court of Appeal. FACTS The appellant was charged with the offence of defilement contrary to section 8(1)(4) of the Sexual Offences Act, No. 3 of 2006. He was found guilty at the Chief Magistrates trial court at Thika and sentenced to 15 years imprisonment. The particulars of the offence were that on diverse dates between January to November 2009, the appellant committed an act that caused penetration to a child aged 17years and 5 months (then). The prosecution called 5 witnesses including PW2 (girl's father) to testify. The appellant was found guilty and sentenced to 15 years imprisonment upon which he appealed to the high court of Kenya where justice Achode dismissed his appeal for lack of merit and upheld the sentence prompting the appellant to move to the court of appeal. ISSUES FOR DETERMINATION The appellant raised 4 main issues for determination where 2 were issues of fact and the other were issues of law. They were: 1) That the High court (hereafter 1 st appellant court) erred in fact by failing to notice the material errors in the birth certificate of the complainant which seemed to indicate that the certificate was issued before the complainant was allegedly born.
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2) That the 1 st appellant court erred in fact by failing to consider the question of the charges against the appellant being brought out of malice by the complainants' father for failure to pay the sum of Kshs. 80,000/= demanded from the appellant. 3) That the 1 st appellant court erred in law by failing to subject the evidence against the appellant to fresh scrutiny as was established in the case of PANDYA vs. REPUBLIC [1957] EA 336, and in OKENO vs. REPUBLIC [1972] EA 32. 4) That the 1 st appellant court erred in law by failing to put into consideration that appellant defence that he reasonably believed that the complainant had granted her consent & that she had the capacity to do so and was of age to contract a marriage under section 8(5)&(6) 1 of the sexual offences act. 5) That the offence of defilement was not proved and therefore the appellant was entitled to an acquittal as per section 111 of the Evidence Act. DECISION AND RATIONALE .
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  • Fall '17
  • Human sexual behavior, Appellate court, Court of Appeal, High Court

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