A 23-year-old man has been set free after the High Court in Mombasa ruled that he could not be held fully responsible for the actions of his peer who went to his house.
Dominic Joshua, 23, was to rot in jail for 10 years over a sexual offence he allegedly committed in 2019, but the High Court saved his life saying that he cannot be blamed for the behaviour of another person of the same age bracket.
His troubles began in February 2019, when he had an unexpected visit from a 16-year-old. By then he was about 19.
The minor left her parents’ house on February 17, 2019, to attend a church service but failed to return home after receiving spiritual nourishment.
Three days later, the minor's grandfather decided to search for her. He went to Kinango Police Station in Kwale County to make a report of a missing person.
However, while on his way to the police station, the grandfather spotted the minor and informed the police, leading to her arrest.
During the interrogation, the minor revealed that she had been at Joshua's house during the three days she was missing.
Subsequently, the minor led the police to Joshua's house where they arrested and charged him with defilement and committing an indecent act with a minor.
According to the charge sheet, Joshua committed these offences on various dates between February 17 and 20, 2019, in Kinango Sub-County.
However, Joshua denied the charges. The Magistrate Court handling the case heard testimonies from five prosecution witnesses and sentenced Joshua to 10 years in prison.
Dissatisfied with the conviction and sentence, Joshua decided to appeal to the High Court. He argued before Justice Anne Ong’injo that the trial court erred in law and facts by imposing a harsh and excessive sentence.
“The trial court erred in law and facts by failing to consider my mitigation address that I was a first offender,” he argued
Joshua also faulted the trial court arguing that it erred in law and fact by failing to take into account the pre-trial custody period while sentencing him.
In his unsworn statement, Joshua said that the complainant was not a school-going child and was married.
“The complainant had intentions of getting married. The charges against me were fabrications,” he said
According to Joshua, the complainant’s parents had married her off and had even been paid dowry.
“I did not have any issue with the complainant or any of her family members prior to this incident,” said the appellant.
Joshua also took issue with the complainant’s birth certificate, which he said was altered to fix him.
The appellant questioned why the prosecution produced two birth certificates with different ages to ensure he was found guilty and punished severely.
“The trial court did not consider my mitigation to my expectation being that I was a first offender and that I was an orphan taking care of my younger siblings,” he said.
According to Joshua, his mitigation was sufficient to inform the court that he was deserving of a non-custodial sentence as his siblings were suffering in his absence.
Justice Ong’injo reviewed the evidence in this case and found that the original birth certificate produced to prove the age of the complainant had a handwritten alteration to show that she was born on April 16, 2005.
However, a photocopy of the same bearing the same serial number as the original shows that the complainant was born on April 16, 2003.
The judge concluded that Joshua’s concern was therefore valid and the trial magistrate confirmed that indeed there was an attempt to alter the complainant’s age with the intention of attracting a more severe sentence.
Court records show that when Joshua was arraigned for the first time in 2019, the court ordered for age assessment to be conducted on the two.
A medical report of the exercise conducted at Kwale District Hospital established that the complainant was about 19 years old.
“Joshua and the complainant were in the same age bracket. Being that the complainant took herself to Joshua’s house where she stayed for three days, his defence that the complainant had intentions of getting married and was not going to school ought to have been considered by the trial court in his favour,” said Justice Ong’injo.
The judge also ruled that the sentence imposed on Joshua was harsh and excessive, considering the circumstances under which the alleged offence happened.
“Having found that the complainant and the appellant were age mates and that she went and spent at the appellant’s place for two days without telling the grandfather, her conduct and behaviour cannot be blamed entirely on Joshua,” said the judge.
Justice Ong’injo concluded that Joshua’s age, mitigation that he was an orphan and that he was responsible for his siblings ought to have been considered by the trial court.
The judge then quashed the conviction, set aside the sentence and released Joshua, ordering that the Sh50,000 cash bail forfeited to the state be returned to him.
The cash bail was forfeited to the state in 2019 after Joshua absconded court due to government-imposed Covid-19 restrictions.
“What is disturbing about the forfeiture of the cash bail is that it was a matter of public knowledge that the entire world was under lockdown due to the Covid-19 pandemic. The appellant’s explanation was satisfactory enough for the trial court to make an order for a refund of the cash bail. This court therefore finds that the forfeiture was uncalled for and hereby orders that the Chief Registrar of the Judiciary processes a refund of the same to Joshua,” said the judge.
Joshua had explained that he was in his home in Kibwezi when the lockdown was announced but still, the money was forfeited to the government.