The alleged victim in this case was a pupil in class 6 of primary school. However, she left school and disappeared between 12/2/2009 and 6/3/2009. The girl’s parents searched for her, and found her in the defendant’s home. The defendant had purported to marry the girl, but the girl’s mother informed the defendant’s parents of the fact that the girl was 15 years old and in school. The defendant was around 20-24 years of age. The defendant’s parents allegedly prevented the mother from collecting the girl.
The girl’s parents reported the events to the area chief, who rescued the girl and arrested the defendant. The girl was later found to be pregnant.
1st Instance:
Court: Resident Magistrate’s Court at Kehancha
Location: Kehancha
Date of decision: 10-03-2009
Reference: Case no. 5 of 2009
2nd Instance:
Court: High Court of Kenya at Kisii
Location: Kisii
Date of decision: 24-03-2010
Reference: L.J.N. vs REPUBLIC [2010] eKLR
The defendant was convicted of the offence of sexual exploitation of a child contrary to section 15 of the Children Act. The defendant was convicted after pleading guilty to the charge (this was later contested by the defendant, see “appellate” section for more information). He was accordingly found guilty on his own plea of guilty, convicted and sentenced to two years imprisonment by the first instance court on March 10, 2009.
Sexual Exploitation of a Child Contrary to Section 15 of the Children Act
The defendant appealed against his conviction, and impugned the decision of the Resident Magistrate. When the appeal came up for hearing, the state conceded to the appeal, firstly on the grounds that the sentence imposed was illegal and secondly, that the plea of guilty entered was not unequivocal.
The High Court held that while the section 15 of the Children Act provides that “[a] child shall be protected from sexual exploitation and use in prostitution, inducement or coercion to engage in any sexual activity and exposure to obscene materials….”, this provision perse does not create an offence. However, the right of the child to be protected from sexual exploitation is turned into an offence by section 20 of the Children Act, which provides that: “[n]otwithstanding penalties contained in any other law, where any person willfully or as a consequence of culpable negligence infringes any of the rights of a child as specified in section 5 to 19, such person shall be liable upon summary conviction to a term of imprisonment not exceeding twelve months, or a fine not exceeding fifty thousand shillings or to both such imprisonment and fine.” Therefore, the High Court found that the appellant should have been charged of “sexual exploitation to a child contrary to section 15 as read in conjunction with section 20 of the children Act”.
Furthermore, the Court held that under Section 20 of the aforementioned Act, upon conviction of the offence, the person convicted is liable to a term of imprisonment not exceeding twelve months, or to a fine not exceeding fifty thousand shillings or to both such imprisonment and fine. In this case however, the learned magistrate sentenced the appellant to 2 years imprisonment. The High Court thus found this sentence to be illegal, since the maximum sentence of imprisonment permissible by the statute is one year.
Most importantly, the High Court considered that the magistrate should not have entered a plea of guilty, and should in fact have entered a plea of not guilty, as the appellant disputed the facts as narrated by the prosecutor: he stated that he had married the girl, and that the disagreement with the parents had only begun when they went to his house to collect the dowry. The High Court therefore found that the appellant’s plea of guilty, on which the trial magistrate had proceeded to convict him, was equivocal, and that a conviction based on a guilty plea must rest on a plea of guilty that is unequivocal.
For the aforementioned reasons, the High Court allowed the appeal and quashed the conviction.
High Court of Kenya at Kisii
L.J.N. vs REPUBLIC [2010] eKLR
The limited facts of this case do not identify a clear instance of trafficking, based on the definitions in the Trafficking in Persons Protocol. On the facts it would appear the offence of sexual exploitation of a child has been misapplied.