[2015] KEHC 2347 (KLR)
The court found that the appellant was seventeen years old at the time of the offence, as established by the age assessment report and the date of the incident. Consequently, the trial magistrate erred in sentencing the appellant to twenty years imprisonment without applying section 8(7) of the Sexual Offences Act,...
Source-derived case information.
- Citation
- [2015] KEHC 2347 (KLR)
- Parties
- Appellant: A J W; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 236 of 2011
- Procedural Posture
- Criminal Appeal / Ruling on Sentence After Age Assessment
- Outcome
- Sentence set aside; appellant placed on probation for eighteen months.
- Judges
- GO Shikwe
- Legal Topics
- Sentencing of Minors, Sexual Offences, Age Assessment, Application of Borstal Institutions Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A J W
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence After Age Assessment
Legal Issues
- 1 Whether the appellant was a minor at the time of the offence and thus entitled to sentencing under section 8(7) of the Sexual Offences Act.
- 2 Whether the trial magistrate erred in sentencing the appellant to twenty years imprisonment without considering his age.
Ratio Decidendi
The court found that the appellant was seventeen years old at the time of the offence, as established by the age assessment report and the date of the incident. Consequently, the trial magistrate erred in sentencing the appellant to twenty years imprisonment without applying section 8(7) of the Sexual Offences Act, which requires that minors be sentenced in accordance with the Borstal Institutions Act and the Children's Act. Given that the appellant had already served nearly four years in prison, the court determined that he had undergone substantial punishment and ordered that he be placed on probation for eighteen months from the date of the ruling.
Court Disposition
Sentence set aside; appellant placed on probation for eighteen months.
Orders
- The sentence of twenty years imprisonment is set aside.
- The appellant is placed on probation for a period of eighteen months commencing on the date of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 236 OF 2011
A J W....................................................................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
RULING
On 29th May, 2015 this Court ordered for an age assessment of the Appellant after he made an allegation to the effect that at the time of the incident he was aged seventeen (17) years.
An age assessment report dated 21st July, 2015 shows that the age of the appellant as twenty one (21) years.
The Court had also ordered for a probation officers report. I have perused the two reports and I am satisfied that if the offender is aged twenty one (21) years old today. He was by deduction born in the year 1994. The incident of defilement is said to have taken place in the year 2011.
At the time of the incident therefore the appellant was aged seventeen (17) years old.
This case therefore falls under section 8(7) of the Sexual Offences Act which provides,
“Where the person charged with an offence under this act is below the age of eighteen (18) years, the Court may upon Conviction, Sentence the Accused person in accordance with the provisions of the Borstal Institutions Act and the children's Act”.
In sentencing the Accused/Appellant to twenty years imprisonment, the learned trial magistrate was in error for failure to apply the provisions of selection 8(7) of the Sexual Offences Act.
It is noted that the Accused was Convicted and Sentenced in the year 2011. He has now served close to four (4) years imprisonment.
He has undergone substantial punishment. He is now placed on probation for a period of eighteen (18) months commencing on the date of this ruling.
Ruling delivered, dated and signed this 5th day of October, 2015.
…...............
M. MUYA
JUDGE
5TH OCTOBER, 2015
In open Court and in the presence of:-
Learned Counsel for the prosecution Mr. Masila
Learned Counsel for the appellant absent
Court Assistant Musundi
M. MUYA- JUDGE