09/12/2022
IT SEEMS TO BE A DISADVANTAGE IN KENYA AS CHILD TO EITHER MATURE EARLY OR BEHAVE LIKE AN ADULT.
In 2019 the Court of Appeal gave us THE GILLICK COMPETENCE in the case of Eliud Waweru Wambui v Republic [2019] eKLR (CORAM: NAMBUYE, MUSINGA & KIAGE, JJ.A) where it was held as follows:
"...We think it is rather unrealistic to assume that teenagers and maturing adults in the sense employed by the English House of Lords in GILLICK vs. WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY [1985] 3 ALL ER 402, 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."
Now, the Honourable Justice Cherere reaffirms in the below captured judgment, reaffirms was held in the famous Chetembwes decision on the interpretation of the provisions of section 8 (5) and (6).
In summary, the suggestions from the Court of Appeal and the below decision of the High Court is that if our childred "look like ducks, swims like ducks, and quack like ducks, then they probably is ducks." This kind of a philosophy suggests a presumption that an accused person is presumed stupid until the otherwise is demonstrated, which is not provided in law.
The statutory defence provided for under section 8 of the Sexual Offences Act should be interpreted through the eyes of a reasonable by stander and not that of the accused person .
