Shawn

@laban_ach @Bulumacleo Seems ur struggling at this,just one case,I can bet no judge has come to that conclusion,I have tens of cases that support my position,for example,Eluid Waweru Wambui vs R by the court of appeal (Musinga,Kiage & Nambuye)to name a few that come to that straightforward conclusion

@laban_ach @Bulumacleo Or any COA or even HC decision to that effect,I'd be curious to see how an act that sets out what the defence must do to prove 8(5) and specifically points to the defence somehow places the burden on the prosecution

Was with him at a criminal trial last month I was bewildered at how the mighty can fall, he nearly became CJ

@laban_ach @Bulumacleo U mean u don't understand the relevance of presumptions of facts to the point u made that there is no inference that can ever be made based on common sense in a trial? 🤦😂Or don't u know what presumptions of facts are? That might be the issue

@gitahishawn @Bulumacleo You should have left this response at "I'm struggling how to respond" Please explain the relevance of the point you just made to our discussion... Be the pro now.

@laban_ach @Bulumacleo And can u also point me to where u get the notion that the prosecution bear the burden to disprove affirmative defences,like,if someone claims provocation,ur argument is that the court will presume provocation unless it is proven beyond reasonable doubt, provocation didn't occur?

@laban_ach @Bulumacleo please read the sexual offences act,it would save u the trouble of being wrong,the SOA clearly places the burden on the accused to prove 8(5),u're yet in all ur 'good' arguments to point me to any textual reading of the act that remotely supports ur position,...

@laban_ach @Bulumacleo U didn't learn evidence law? Because how don't u know about presumptions of facts,like,even without that,ur not aware of doctrines like last seen,recent possession?what do u think happens there if not common sense inferences🤦seriously,I'm struggling on how to respond

@gitahishawn @Bulumacleo I don't know where you are getting this lay idea that an accused is presumed to know material facts central to the crime based on common sense. I cant even engage this position because it would reinforce bad manners. Frame a proper acceptable argument first

@laban_ach @Bulumacleo If u read the act, u'll see that it talks directly to the accused and what the accused must show for that defence to be available to him,it places no obligation on the prosecution

@laban_ach @Bulumacleo Defilement is a strict liability offence,intention is irrelevant and hence the prosecution does not bear the burden,8(5) is an affirmative defence like Insanity that the defence must prove,the act literally states that the accused must show the steps he took

@laban_ach @Bulumacleo *and btw,whilst not in the judgement,this case,if u research,involved a practice in those coastal areas where minors cohabitate with adults to meet financial demands,it was not as if it was a one night stand,they were in a relationship of some sorts hence why 8(5) can't work

@laban_ach @Bulumacleo From what,did the appellate court see the victim?And again,even if he had raised it,it can't succeed as u can't cohabitate with a 13yr old for a long time and not reasonably find out their age,regardless of their features,u'd have a very very high burden to meet

@laban_ach @Bulumacleo first,the prosecution doesn't have to prove anything,the accused bears the burden,and second,ur right,it is a question of fact that must be raised and determined by the trial court hence the judge is still wrong

@gitahishawn @Bulumacleo No. You are just assuming that all 13 yr olds look like the tiny child-looking teenagers you see in Nairobi that never really develop for physical expression my guy. That's a question of fact you cant pass blanket assumptions around where the standard is Beyond reasonable doubt

@laban_ach @Bulumacleo in this case, the judge very clearly said the accused didn't argue that below,that is an affirmative defence so it has to be raised for the trial court to make factual determinations about the appearance etc,without that,anything else said is wrong

@laban_ach @Bulumacleo The law requires that first,it must be reasonable for the accused to think someone was an adult,it is doubtful that could ever apply to a 13yr old and once u add in long cohabitation,it cannot work,second,it requires the accused to say what steps they took to ascertain the age,

@laban_ach @Bulumacleo Here is an excerpt directly from the judgement,he said that she enjoyed it and hence he couldn't be charged with defilement notwithstanding her age,even alluded to nations where it is permissible at 13 or 14 yrs,his issue was not about the accused knowing the age

@gitahishawn @Bulumacleo Maybe I read the decision too long ago, but I don't think he alluded to anything like "the accused knew she was 13 but the practice allows" His main point was that the minor acted like an adult because they met in clubs, she was already a mother, and used to sneak out for sex

@laban_ach @Bulumacleo As long as the accused knew or ought to have known the victim was a child,every thing else is immaterial,anything else is noise,and to use a practice borne out of exploitation of minors for money,as he did,to justify it is beyond egregious

@laban_ach @Bulumacleo And on the merits,he was completely wrong,he literally said that notwithstanding the fact that the accused knew she was 13 yrs,because it was a practice there and she acted like an adult,it is permissible,there is nothing about that that is remotely correct under the SOA

@laban_ach @Bulumacleo That isn't how precedent works,the COA has rejected the notion that a child can consent repeatedly so that is not good law,otherwise,the supreme court is useless as every decision that is to the contrary before they settle an issue is good law as they haven't been overturned

@jamrick_ Why should anyone trust u to make money for the country when u cant do it for urself, almost every poor politician who has been elected has been a failure and for good reason,they aren't competent financially hence why they are in their situation but u want them to govern

Jana Jeff ameniudhi sana...like who said lazima ukue na pesa ndio you go for an elective seat. Mentality ya millennials inaudhi nkt!