• Man appealed verdict saying he thought she was an adult and 'even lived with her for days, planning to marry her'.
• 'Complainant's brother said he found her fast asleep with the appellant in the house in circumstances that did not show any forceful confinement.'
The High Court in Kericho has released a man sentenced for defiling a 16-year-old mother of one.
In his ruling on Tuesday last week, Justice George Dulu said Vincent Rutto had every reason to believe that the complainant was an adult unless she disclosed her age.
Rutto was accused of defiling CCM on diverse dates between October 17 and 21, 2016 in Kericho. He was convicted and sentenced to 15 years in jail.
The complainant, he said, had a son aged five and was already in a tertiary training institution.
Aggrieved by the decision of the trial court, Rutto appealed the decision where he stated that he was assaulted by the complainant who later became a prosecution witness.
He claimed to have been deceived to believe the complainant was an adult and that the evidence of the prosecution constituted mere speculations.
“The magistrate dismissed my defence without proper consideration that this case was just a cover-up of an assault against me,” he said.
He added, “The complainant, in fact, had a five-year-old child hence I believed that she was an adult.”
In their testimony, the complainant and her mother had told the court that the appellant promised to marry the complainant and had detained her for one week, defiled her and threatened to kill her if she raised alarm.
Rutto did not dispute having had sex with the complainant but in his defence, said he intended to marry her and lived with her for days as husband and wife.
“It was not disputed that the complainant has a five-year-old, which means any reasonable man would unless otherwise told, believe that she was an adult,” the judge said.
He said there was no evidence that the appellant was an elderly man or had married before. Both the appellant and the complainant were first-attempt persons on marriage.
From the circumstances of the case, Dulu said it was clear that CCM went on her own and lived with the Rutto as a wife for some days.
He said that though CCM gave evidence that she was sexually abused by the appellant, her brother who went to rescue her said she was fast asleep with the appellant in the house in circumstances that did not show any forceful confinement.
In addition, though the complainant said that she did not know the appellant, both her mother and her brother confirmed that they knew him.
“In my view, therefore, it was not reasonable for the learned magistrate to find that the appellant had no reason to believe that the complainant was an adult.”
The judge, therefore, quashed the conviction. He ordered that the appellant be freed unless otherwise lawfully held.
Edited by R.Wamochie