Jimwat’s famous lyric, “Kumbe ni under 18! Sa mi ningejuaje? Nitambiaje jaji” (“Oh, so she is under 18! How could I have known? What will I tell the judge?”), mirrors the predicament that befell Baya Mitsanze, who narrowly escaped a 10-year prison sentence after the High Court found uncertainty over the age of the girl he was accused of defiling.
For a bottle of beer and an alleged Sh15,000 dowry, Mitsanze was said to have married a girl identified only as MK. She told the court she was 17 when they began living together and later became pregnant.
He was arrested, charged with defilement and convicted by Malindi Chief Magistrate James Mwaniki, who sentenced him to 10 years’ imprisonment. MK’s father was separately charged with exposing his daughter to child marriage.
The prosecution alleged the offence occurred between January and July 2023. However, those dates became central to the appeal because they suggested MK may already have turned 18 by the time she had sexual intercourse with Mitsanze.
On appeal, Justice Nyagah Njagi quashed the conviction after finding that the prosecution had failed to prove beyond reasonable doubt that MK was under 18 at the time of the alleged offence.
