A Malindi court on Tuesday freed a suspect accused of defiling a minor.
Mr Lodgers Tsofa Facho was accused of defiling and impregnating a 17-year-old girl four years ago.
In his ruling, Justice Said Chitembwe dropped the charges against Mr Facho, arguing that he had promised to marry the young girl as they were in a cordial relationship.
Judge Chitembwe said Facho’s age was not determined during the trial and that there is a possibility that he could have been under 18 years when he engaged in sex with the minor back in 2014.
The judge further ruled that the court could not conclude if the young man had lured the girl into having sex with him, adding that the girl behaved like an adult when they both engaged in sex at their youthful age.
Justice Chitembwe said the evidence produced before him showed that the two had sex several times before she conceived, proving that they were lovers.
“The complainant knew what she was doing. Assuming she was below 18 years old and could not give her consent to sex, the way she behaved proves that she was sexually active. She was not threatened or lured into sex by the appellant,” said the judge as quoted by Daily Nation.
“It would be imprudent to have the appellant spend 15 years in jail yet the evidence shows that there is a high probability that he was below 18 years when he started having sex with the complainant,” added Justice Chitembwe.