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Wrongly Convicted Database Record
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Charge: |
Defilement of a minor (statutory rape) |
Sentence: |
15 years |
Years Imprisoned: |
9.4 |
Year Crime: |
2009 |
Year Convicted: |
2011 |
Year Cleared: |
2019 |
U.S. State or Country of Crime: |
Kenya |
County or Region of Crime: |
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City of Crime: |
Thika |
Result: |
Judicially Exonerated |
Summary of Case: |
"Eliud Waweru Wambui was wrongly convicted in 2011 of defilement (statutory rape) of an under 18-year-old girl in Kenya. Wambui was arrested in November 2010 and arraigned on December 1, 2010 in the Chief Magistrate’s Court at Thika. His prosecution was based on a complaint by her father that his daughter conceived a child in May 2009 with Wambui when she was under 18. Wambui's wife did not want to make a statement and testify against Wambui, but she did so only after being threatened by the police and jailed for three days. His daughter and Wambui were married on November 14, 2009 when she was over 18. The father was upset that his daughter had married and had a child, and he only went to the police to file a complaint after Wambui refused his demand for payment of Kshs 80,000 (approx US$800). To establish her age the prosecution relied on the claim she was born on October 3, 1991 -- but she only had a photostat of an alleged birth certificate, and no certified birth certificate. Based on her alleged birth date, she was 18 years and one month old at the time of her marriage to Wambui. Wambui's defense was that he reasonably believed she was over 18 when he became sexually intimate with the girl who he later married. After his conviction Wambui was sentenced to 15 years in prison. Wambui appealed on the basis the prosecution failed to prove the essential element that he knew his wife was under 18 when he became sexually intimate with her. He also claimed the photostatic copy of the birth certificate the prosecution relied on was fraudulent because it was dated October 1, 1991 -- two days BEFORE her alleged birth on October 3, 1991 described in the document. On June 25, 2014 the High Court at Nairobi ruled his appeal was without merit and dismissed it. In Kenya the court of first appeal must scrutinize the prosecution's evidence and arrive at its own independent factual conclusion the defendant is guilty. Wambui filed a pro se appeal that claimed the High Court erred as a matter of law and fact by failing to analyze the evidence and "notice that essential ingredients/elements of the offence as charged were not proved." Wambui asserted the High Court failed to consider the alleged birth certificate was issued before his wife was allegedly born; the charges against him "were borne out of malice and ill-will due to the fact that" he didn't pay his wife's father the compensation he demanded; and that he reasonably believed his wife to be "had granted her consent and that she had capacity to grant the said consent and he believed she was full of age (sic) and capacity to contract a marriage.” On March 22, 2019 a three-judge panel of the Court of Appeal at Nairobi quashed Wambui's conviction and did not order a retrial on the basis that as a matter of law the prosecution failed to introduce evidence sufficient to prove the essential element of defilement that Wambui knew his wife was less than 18 when they became sexually intimate -- or even to prove her actual age. Regarding the girl's alleged birth certificate the appeals court's ruling stated: "A Photostat copy of the alleged birth certificate produced, which copy was not certified as required by section 66 of the Evidence Act when permitting the production of secondary evidence if primary evidence, which was the document itself, was not produced for the inspection of the Court and the contents of the document were sought to be proved by secondary evidence, was not a document that could be relied on in proof of the complainant’s age. Further, the document itself purported to have been issued before the birth of the complainant, evidence of which it purported to be, was a logical impossibility. Therefore, the document as was, was of no probative value." The Court also stated regarding Wambui's reasonable belief his wife was over 18: "Further, it stood to reason that a person was more likely to be deceived into believing that a child was over the age of 18 years if the said child was in the age bracket of 16 to 18 years old, and that the closer to 18 years the child was, the more likely the deception, and the more likely the belief that he or she was over the age of 18 years." The Court also discussed that Kenya's 18 year old age of consent was behind international norms: "We need to add as we dispose of this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults ... do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps.” “Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalized and even then the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.” [Eliud Waweru Wambui v Republic, Criminal Appeal 102 of 2016 (Court of Appeal at Nairobi, 3-22-2019)]" |
Conviction Caused By: |
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Innocence Proved By: |
"On March 22, 2019 a three-judge panel of the Court of Appeal at Nairobi quashed Wambui's conviction and did not order a retrial on the basis that as a matter of law the prosecution failed to introduce evidence sufficient to prove the essential element of defilement that Wambui knew his wife was less than 18 when they became sexually intimate -- or even to prove her actual age." |
Defendant Aided By: |
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Compensation Awarded: |
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Was Perpetrator Identified? |
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Age When Imprisoned: |
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Age When Released: |
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Sex: |
Male |
Skin/Ethnicity: |
Black |
Information Source 1: |
"Eliud Waweru Wambui v Republic, Criminal Appeal 102 of 2016 (Court of Appeal at Nairobi, 3-22-2019) (Conviction quashed and sentence set-aside)" |
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https://email.powweb.com/sqmail/src/webmail.php |
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Innocents Database Created and Maintained by Hans Sherrer innocents@forejustice.org