[2016] KEHC 5812 (KLR)
The court found that the applicant, a minor, was wrongly tried and convicted as an adult, resulting in a null and void trial and sentence. Both parties conceded the trial's nullity. The court determined that ordering a retrial would further prejudice the applicant, who had already suffered grave injustice by being...
Source-derived case information.
- Citation
- [2016] KEHC 5812 (KLR)
- Parties
- Applicant: C M Z; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 16 of 2016
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time and Consideration of Retrial Due to Applicant's Minority
- Outcome
- Application allowed; trial and sentence set aside; applicant released; pending appeal withdrawn.
- Judges
- WA Okwany
- Legal Topics
- Child Stealing, Trial Nullity, Rights of Minors, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C M Z
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time and Consideration of Retrial Due to Applicant's Minority
Legal Issues
- 1 Whether the applicant's trial and conviction as an adult, despite being a minor, rendered the proceedings a nullity.
- 2 Whether a retrial should be ordered in light of the applicant's constitutional and statutory rights as a minor.
- 3 Whether the applicant's four-month incarceration in an adult prison constitutes sufficient punishment.
Ratio Decidendi
The court found that the applicant, a minor, was wrongly tried and convicted as an adult, resulting in a null and void trial and sentence. Both parties conceded the trial's nullity. The court determined that ordering a retrial would further prejudice the applicant, who had already suffered grave injustice by being incarcerated in an adult prison for four months. Citing the principle that retrials should only be ordered where the interests of justice require and not where it would cause injustice, the court held that the applicant's rights under the Constitution and the Children Act had been violated. The court exercised its revisionary jurisdiction to set aside the proceedings and...
Court Disposition
Application allowed; trial and sentence set aside; applicant released; pending appeal withdrawn.
Orders
- The proceedings and sentence of the trial court are set aside.
- The applicant shall be set free forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
MISC. CRIMINAL APPLICATION NO. 16 OF 2016
C M Z………………….....……………..APPLICANT
VERSUS
REPUBLIC…………………….….RESPONDENT
RULING
1. In the process of dealing with the applicant’s application dated 1st March, 2016 for leave to file an appeal out of time this court’s attention was drawn to the fact that the applicant could be a minor, a fact which was not brought to the attention of the trial court at the time she was tried and convicted of the offence of child stealing contrary to Section 174 (1) (a) of the Penal Code.
2. This court therefore called for an age assessment report from Kisii Teaching and Referral Hospital which report has been filed today (31/3/2016). The report indicates that the applicant is a minor aged between 16 and 17 years.
3. It is the revelations contained in the age assessment report that has made this case take a whole new dimension with Mr. Otieno counsel for the state conceding that the trial before the lower court was a nullity as the applicant was tried and convicted as an adult after which she was jailed for 3 years. Mr. Otieno therefore suggested that the applicant should be taken back to the lower court for a retrial.
4. Mr. Obure for the applicant, on his part, vehemently opposed the proposal for a retrial while arguing that the minor’s constitutional rights had been grossly violated courtesy of a null trial and judgment that led her to be held in an adult’s prison for the last 4 months.
5. According to Mr. Obure, the minor applicant has been subjected to unconstitutional processes for which she has suffered greatly and therefore, her 4 months stay in an adult’s jail should be treated as sufficient punishment and as such she should not be subjected to any further court processes.
6. I have considered the rival submissions made by the learned counsels for the state and the applicant. It is conceded by both parties that the trial before the lower court was a nullity in view of the fact that the applicant herein was tried as an adult and sent to adult’s jail where she has been for the last 4 months. In view of the above circumstances, the fact that the applicant’s constitutional rights and rights guaranteed to her under the Children Act 2001 have been violated cannot be gain said.
7. The question that now begs this court an answer is if, under those circumstances, this court should order a retrial. I do not think so.
8. It is my humble view and I concur with the submissions of the applicant’s counsel that the minor has already suffered a grave injustice and that the period she has been in jail is sufficient punishment for, her if indeed she committed the offence.
9. In the case of Fatehali Manji vs Republic [1964] EA.A 431 the court of Appeal stated as follows on retrials:
“even where a conviction is initiated by a mistake of the trial court which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered, each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it an should not be ordered where it is likely to cause an injustice to the accused person.”
10. In this instant case, the applicant has already suffered an injustice of an irregular and null trial. She has been in prison for the last 4 months. Subjecting her to a fresh trial will in my humble view cause a great injustice and prejudice to her.
11. Consequently, I hereby invoke the powers conferred to this court under Section 362 and 364 of the Criminal Procedure Code and revise the irregular orders of the trial court and set aside the proceedings and sentence.
12. The applicant shall be set free forthwith unless she is otherwise lawfully held.
13. Accordingly Kisii HCCRA NO. 10 of 2016 which had already been filed in respect to the applicant is hereby withdrawn.
Delivered, dated and signed in at Kisii on 31stday of March, 2016.
W.A. OKWANY
JUDGE
In the presence of:
Mr. Otieno for the State
Obure for the Accused
Omwoyo court clerk