Introduction
A court sitting in Kilifi has ruled that a defilement case involving a sixteen-year-old girl and a twenty-two-year-old man cannot be settled through marriage. The magistrate blocked an attempt by the Director of Public Prosecutions to approve such a marriage as a form of diversion. Instead, the court ordered that the man be re-arrested and directed that the minor be taken back to school. This decision is significant because it reinforces the constitutional and statutory protections for children and makes clear that marriage cannot be used to escape liability for sexual offences.
The Case before the Court
The accused man was charged with defilement under section eight of the Sexual Offences Act. During the proceedings the Office of the Director of Public Prosecutions sought to use diversion and suggested that the matter could be resolved if the accused married the complainant. The magistrate presiding over the case, Ivy Wasike, rejected this approach and held that it had no basis in law. The court described the arrangement as an attempt to disguise child marriage as a legal settlement and refused to allow it.
The Law on Defilement and Marriage
The Sexual Offences Act sets out strict rules on defilement. Any sexual contact with a person under eighteen is a crime. Consent is not a defense and the penalties are heavy. In cases where the victim is aged between sixteen and eighteen the punishment is at least fifteen years in prison. The Marriage Act further makes it clear that the legal age for marriage in Kenya is eighteen. Any union involving a child is unlawful. The Constitution adds to this by guaranteeing every child the right to education and the right to be protected from abuse and harmful practices. These legal provisions together make it impossible for a defilement case to be converted into a marriage arrangement.
Limits of Diversion
Diversion in criminal law allows some cases to be resolved outside court through agreements or restorative measures. It is meant for minor offences where rehabilitation is more useful than punishment. However, diversion is never allowed in serious offences such as sexual crimes involving children. By proposing diversion in this matter, the DPP went beyond the limits of the law. The court’s rejection of the proposal clarifies that prosecutorial discretion must operate within constitutional and statutory boundaries.
Court Ruling
The ruling rested on four main points. First that defilement cannot be compromised and the law demands prosecution. Second that any marriage involving a person below eighteen is void and has no legal force. Third that the best interests of the child are paramount and, in this case, the best outcome was for the girl to return to school. Fourth that the powers of the prosecution cannot override constitutional rights and cannot be used to create settlements that the law does not recognize.
Larger Consequences
The decision carries wider meaning for the justice system and for child protection in Kenya. It sends a strong warning that marriage will never be used to sanitize sexual offences. It also restrains the Office of the DPP from attempting to use diversion in cases where the law expressly forbids it. For the public it acts as a deterrent and affirms that offenders cannot escape responsibility by hiding behind cultural practices or negotiated settlements. Internationally it shows that Kenya’s courts are aligned with global treaties such as the Convention on the Rights of the Child which bar early marriage.
Issues To Address
The case raises questions that will need answers. Should Parliament or the courts issue clearer guidelines to prevent misuse of diversion in sexual offences. How will the ODPP reform its practices to make sure this mistake is not repeated. What steps will government and civil society take to ensure that victims of defilement are supported to heal and continue with their education. And will higher courts confirm this reasoning if the matter is appealed.
Conclusion
The Kilifi ruling is a powerful statement that child marriage cannot replace justice. By refusing to allow marriage as a settlement the court protected the rights of a girl who was at risk of being trapped in an unlawful union. The judgment upheld the Constitution the Sexual Offences Act and the Marriage Act while also honoring Kenya’s commitments under international law. It made clear that the best interests of the child must guide every decision and that justice cannot be negotiated away when minors are involved.
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