A politician from the Coast could be charged with defilement if it is established that he married a 16-year-old girl after paying her mother Sh500,000 and giving her a sofa set.
At the heart of the case are two birth certificates, one showing that the girl is 16, and another indicating she is 18.
Investigations started on August 28, 2020, after the minor’s father filed a missing report with the Directorate of Criminal Investigations (DCI), claiming that his underage daughter had been married off to a politician.
To back his claim, the father furnished the police with a birth certificate indicating that she is 16-years-old. Detectives then traced the girl to the politician’s upmarket Nairobi apartment after establishing that she had been married off, and that her mother had received the money and furniture as bride price.
Police stormed the home of the politician, who is in his 50s, in September, found the girl and took her for a medical examination that revealed she was pregnant.
Detectives were planning to use the pregnancy as evidence, as they wanted to add sexual assault of a minor to the list of charges against the politician.
The girl’s mother was also to be charged with child neglect.
However, before police could wrap up investigations and evidence collection, the girl’s mother filed an application at the Milimani High Court, seeking an order of habeas corpus – an order requiring the production and release of an individual that is being held against their will and in violation of the law.
To back up her court application, the mother produced a birth certificate indicating that her daughter is 18.
She argued that the birth certificate produced by the girl’s father was contested, and that the minor was lawfully married in a ceremony conducted by the Kadhi’s Court.
She claimed that police do not have a court order or any other legal document allowing them to keep custody of her daughter.
Justice Jessie Lesiit has now ruled that without a formal petition being filed, she is unable to make any orders against the DCI, police and the children’s home where the girl is being held.
Justice Lesiit, however, said the dispute warrants further examination by the court.
The judge has ordered any party interested in securing the girl’s release to urgently file a formal petition before court.
She added that at the hearing of the petition, the court will determine which of the two birth certificates is accurate, whether there was a legal wedding between the politician and the girl at the Kadhi’s Court and whether any criminal charges can be brought against the politician.
“While the writ of habeas corpus is a quick means of approaching the court to secure the release of a detained person where one is able to demonstrate that such detention or confinement is unlawful, I am unable to make any further progress in this matter without the benefit of a petition filed by the applicant (the girl’s mother). Such a petition will set out in a formal and constructive manner, the facts of the case, the question for determination, and the relief being sought, among others, which are now missing due to the procedure adopted by the applicant,” said the judge.
The mother claimed that the girl left home in 2017 after dropping out of school for lack of fees. She allegedly decided to get married.
The mother added in court that the girl’s father abandoned the family 17 years ago, hence should not be believed.
She faulted the DCI for taking custody of the girl under section 119 of the Children Act.
Section 119 of the Children Act directs authorities to place vulnerable minors without parents, guardians or financial stability in facilities separate from those where child offenders are taken.
The mother argues that the girl was well taken care of by the politician, and was not found begging.