Daughter accuses father of marrying her off at 17 for a bottle of beer

Jimwat’s song “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?) speaks to the circumstance of Baya Mitsanze, who has escaped 10 years in jail for sleeping with a girl whose age is disputed.

For a bottle of beer and Sh15,000 as dowry to the father of MK, Mitsanze allegedly married the young girl who claimed she was 17 years old at the time.

Mitsanze was in 2023 arrested and charged with defilement and impregnating MK. After a long court process, he was convicted on July 18, 2024, and slapped with 10 years in prison by Malindi Chief Magistrate James Mwaniki.

MK’s father was also charged with marrying her daughter at a tender age, but it is not stated how many years he would serve.

The prosecution had then told the court that the alleged defilement happened when she was a minor.

However, upon appeal, Mitsanze was set free by Justice Nyagah Njagi after the court established that MK could have possibly been over 18 or 19 years when she slept with Mitsanze.

MK said she was 17 years old, a fact that was supported by an X-ray by a dental surgeon at Malindi sub-county hospital that indicated her wisdom teeth were not fully developed.

The surgeon held that MK’s age has a variation of plus or minus one year.

However, MK’s father insisted that her daughter was born on April 20, 2005, thus making her 18 years by the time Mitsanze married her, a fact that was corroborated by a teacher from MK’s school who produced an antenatal book used to admit her at the school.

MK had also confessed to celebrating her 18th birthday around 2023 when she allegedly slept with Mitsanze and got pregnant.

But Justice Njagi held that although MK’s age was not clearly established, the father indicated that she was born on April 20, 2005, a fact that explained why MK said her 18th birthday was sometimes in 2023.

The judge noted that the dental surgeon's opinion had an error margin of two years despite concluding that MK was 17 years old, a fact that could place her at 19 years old when sexual intercourse occurred.

Although in his judgment, Justice Njagi upheld the magistrate’s court verdict that there was no reason to doubt MK’s allegation that Mitsanze had intercourse with her and relied on her sole evidence to convict him, he questioned why she did not explain why she told the trial court that she was aged 17 years when she had already celebrated her 18th birthday.

The judge held that MK’s evidence was true because there was no grudge between the two that would have led her to fabricate the evidence.

“It is not possible that the complainant (MK) would have fabricated all this evidence that even implicated her father in marrying her off to the Appellant (Mitsanze). She had no reason to lie against her father,” said Justice Njagi.

The judge said, “But in view of my finding that the complainant (MK) had celebrated her 18th birthday at the time she engaged in sex with the Appellant (Mitsanze) and considering that there was no concrete documentary evidence on her age, there is a possibility that the complainant was above the age of 18 years when she engaged in sexual intercourse with the Appellant.”

“There was no full proof evidence that the complainant was at the material time below the age of 18 years. The appellant was entitled to the benefit of doubt. The element of age was therefore not sufficiently proved,” he noted.

Although MK claimed she was underage and was defiled by Mitsanze, a whole different picture was painted by her father, brother, grandmother and aunty who accused her of loving men and having numerous boyfriends.

MK’s father told the court that her daughter had many boyfriends, was not of good conduct and was the one who introduced Mitsanze as a suitable suitor to marry her, thereby abandoning all other suitors.

The father said that before blessing their marriage with Mitsanze, he asked her to confirm that she was over 18 years.

He also denied ever receiving a Sh15,000 dowry, claiming that Mitsanze only gave out Sh2000 to facilitate her getting an Identity Card.

MK’s brother DW5 said that her sister never told him about being forcefully married off but revealed to him that she had been beaten by her man identified as Mutiso.

MK’s grandmother threw her under the bus by admitting that she liked hanging around with men who often fought over her.

“I lived with my granddaughter for five years and I noted that she liked men and they would fight over her,” said grandmother identified as DW6.

Likewise, her aunt DW7 testified that MK loved men and she once busted her with a man in her house in Mombasa.

“MK is my niece. I stayed with her in Mombasa for 14 months and noted that she liked men. I caught her with a man in my house and chased her away,” said DW7.

However, MK in her testimony said that she met with Mitsanze at a hotel in Gede in Malindi where she worked as a waitress after completing her Kenya Certificate of Primary Education (KCPE).

Without finances to proceed to secondary school, Mitsanze, who frequented the hotel, offered to take her to a local polytechnic.

Mitsanze gave her Sh850 as fare to fetch her certificate from their home, but she returned empty-handed, alleging the certificate was lost just like her birth certificate.

That marked the end of her hopes to advance her education and instead, Mitsanze started showering her with money and gifts.

Eventually, Mitsanze visited MK’s home bearing gifts for his father, who allowed his proposal to marry his daughter.

MK said that her father summoned her back home, where upon arrival, she was informed that Mitsanze was to marry her.

After Mitsanze’s second visit, her father blessed their marriage upon being given beer and Sh15,000 worth of dowry.

MK was escorted to Mitsanze’s homestead by her father, where upon arrival, she cooked for them both.

MK told the court that after her father left, Mitsanze unleashed ‘bedmatic’ skills on her, and she ran away the following day.

Unfortunately, her father forced her back to Mitsanze’s house, where she encountered sexual assaults, including defilement.

According to her, the accused left her with his sister as he proceeded to work in Mombasa County, where he was a casual worker but not before doing a hefty shopping for them.

MK reported Mitsanze to a neighbour who alerted the Watamu area Assistant Chief and she was rescued to a children’s home by police.

She underwent several tests, including pregnancy and it was found that she was four weeks pregnant.

Mitsanze and MK’s father were arrested and charged with defilement and exposing the daughter to early marriage, respectively.

In his defence, Mitsanze denied ever marrying MK, defiling and impregnating her.

Mitsanze said that the pregnancy resulted from other sexual relationships, as he did not engage in sex with her on the alleged dates of June 2023.

He said MK’s allegations were a fabrication out of vengeance after an attempt to end his association and intended marriage with her over promiscuity.

Mitsanze said that it was MK who initiated the relationship after he offered to help her continue with her education and that after she lost her job at the hotel, she frequented his place with hopes he would marry her

Mitsanze said MK confirmed that she was 18 years old and had just celebrated her 18th birthday, although no document was shown to him to prove the same.

He denied ever paying dowry but admitted that he gave her money and food for her family.