[2004] KECA 131 (KLR)
The Court of Appeal found that both the trial court and the High Court erred in sentencing the appellant without proper consideration of his age, despite his claim to be 17 years old at the time of conviction. The trial court proceeded to sentence him to death in the absence of a medical report confirming his age,...
Source-derived case information.
- Citation
- [2004] KECA 131 (KLR)
- Parties
- Appellant: Anthony Mwangi Wakaza; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2003
- Procedural Posture
- Criminal Appeal / Second Appeal From High Court Judgment
- Outcome
- appeal allowed; sentence set aside; appellant to be released forthwith
- Judges
- PK Tunoi
- Legal Topics
- Sentencing of Minors, Robbery With Violence, Illegal Sentence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Mwangi Wakaza
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From High Court Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant, who was a minor at the time of conviction, was lawful.
- 2 Whether the trial and High Court erred in sentencing the appellant without proper age assessment.
Ratio Decidendi
The Court of Appeal found that both the trial court and the High Court erred in sentencing the appellant without proper consideration of his age, despite his claim to be 17 years old at the time of conviction. The trial court proceeded to sentence him to death in the absence of a medical report confirming his age, which was a procedural and legal error. The High Court, on appeal, substituted the conviction to simple robbery and imposed a sentence of ten years imprisonment and four strokes of the cane, which was also illegal given the appellant's minority status. The Court of Appeal held that the sentence was unlawful and set it aside, ordering the appellant's immediate release.
Court Disposition
appeal allowed; sentence set aside; appellant to be released forthwith
Orders
- The sentence of ten years imprisonment and four strokes of the cane is set aside.
- The appellant shall be released from prison forthwith.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, TUNOI & O’KUBASU, JJ.A.) CRIMINAL APPEAL NO. 21 OF 2003
BETWEEN
ANTHONY MWANGI WAKAZA…......………………………………..APPELLANT
AND
REPUBLIC………………………………………….……………… RESPONDENT
(Appeal from a Judgment of the High Court of Kenya at Nairobi (Mr. Justice Osiemo & Oguk) dated 31. 07. 1998
in
H.C.CR.A. NO. 1065 OF 1997) ************************
JUDGMENT OF THE COURT
The appellant was convicted on a charge of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death although the appellant had told the trial court that he was aged 17 years. On the appeal to the High Court the High Court substituted the conviction of robbery with violence with simple robbery contrary to section 296(1) of the Penal Code and sentenced the appellant to ten (10) years imprisonment.
The appellant now comes to us by way of second appeal. Mr. Mbugua for the appellant has told us that he is appealing against the sentence only.
It is to be noted that before being sentenced by the trial court the appellant had said that he was aged only 17 years. For that reason the trial court made an order to the effect that the appellant’s age be assessed.There was some delay in obtaining the medical report on the appellant’s age. It would appear the trial court became impatient and hence proceeded to sentence the appellant to death in absence of a medical report as to his age. That was an error on the part of the trial court.
Then when the appellant’s appeal was considered by the High Court the conviction on robbery with violence was substituted with simple robbery contrary tosection 296(1) of the Penal Codeand appellant sentenced to ten (10) years imprisonment. With due respect to the two courts below the sentence passed on appellant was illegal. It therefore follows that the appeal is allowed and we set aside the sentence of ten years imprisonment and four strokes of the cane and substitute them with such sentence as will result in the appellant being released from prison forthwith.
Dated and delivered and Nairobi this 21st day of April, 2004.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
P.K. TUNOI
………………………….
JUDGE OF APPEAL
E.O. O’KUBASU
…………………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original. DEPUTY REGISTRAR