[2011] KEHC 2744 (KLR)
The trial court erred in sentencing the appellant, who was 16 years old at the time of conviction, to imprisonment. Section 190 of the Children.s Act expressly prohibits the imprisonment of children. The lower court failed to consider the mandatory statutory provisions governing the sentencing of minors. The...
Source-derived case information.
- Citation
- [2011] KEHC 2744 (KLR)
- Parties
- Appellant: C.G.; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 209 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- MM Kasango
- Legal Topics
- Sentencing of Children, Handling Stolen Goods, Probation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C.G.
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant, a minor, was lawful under the Children.s Act.
- 2 Whether the trial court erred in sentencing the appellant to imprisonment contrary to statutory provisions.
Ratio Decidendi
The trial court erred in sentencing the appellant, who was 16 years old at the time of conviction, to imprisonment. Section 190 of the Children.s Act expressly prohibits the imprisonment of children. The lower court failed to consider the mandatory statutory provisions governing the sentencing of minors. The appellate court found that the sentence was unlawful and manifestly excessive in the circumstances. Consequently, the sentence of imprisonment was set aside and replaced with a probation order in accordance with the Children.s Act.
Court Disposition
appeal_allowed
Orders
- The sentence of C.G. by Moyale Principal Magistrate Court in Criminal Case No. 315 of 2009 is set aside.
- The appellant is sentenced to serve 3 years of probation.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 209 OF 2009
C.G. ….................………………………………………………. APPELLANT
VERSUS
REPUBLIC …………………………………………………… RESPONDENT
(An appeal from the judgment of the Principal Magistrate Court at Moyale in Criminal Case No. 315 of 2009 delivered on 24th September 2009)
JUDGMENT
The appellant was convicted by the Senior Resident Magistrate Court Moyale on 24th September 2009 on the charge of handling stolen goods contrary to section 322 (2) of the Penal Code. His co-accused Y.H. was convicted of the offence of stealing contrary to section 275 of the Penal Code. The appellant was sentenced to 6 years imprisonment and his co-accused was sentenced to 3 years probation. The appellant was at the time of his conviction 16 years old while his co-accused was 15 years old and pregnant. The appellant has appealed against the sentence. As stated in the case Republic vs Jagani & Another [2001] KLR 590 the circumstances under which the court will interfere with the sentence of the trial court are:-
“A court on appeal will only interfere with the discretion of a trial court in sentencing where the sentence was imposed against legal principles, or when relevant factors were not considered or irrelevant and or extraneous matters considered or normally where the sentence is manifestly excessive in view of the circumstances of any case.”
In this case the appellant as can be seen by the birth certificate he produced before court was 16 years old when he was convicted and sentenced by the lower court. Section 190 of the Children’s Act should have guided the lower court on the sentence to impose on the appellant. Section 190 (1) (2) and (3) provides as follows:-
“190 (1) No child shall be ordered to imprisonment or to be placed in a detentioncamp.
(2) No child shall be sentenced to death.
(3) No child under the age of ten years shall be ordered by a Children’s Court to be sent to rehabilitation school.”
That being so, the lower court should have been guided by the provisions of section 191 (1) of the Children’s Act in imposing sentence on the appellant. It is clear from the provisions of the Children’s Act that the sentence imposed by the trial court went contrary to that Act. It is for that reason I will interfere with the trial court’s sentence. I order that the sentence of C.G. by Moyale Principal Magistrate Court in Criminal Case No. 315 of 2009 be set aside and instead I hereby sentence the appellant to serve 3 years of probation.
Dated, signed and delivered at Meru this 26th day of May 2011.
MARY KASANGO
JUDGE