[2023] KEHC 24519 (KLR)

CKM v Republic (Miscellaneous Criminal Application 394 of 2023) [2023] KEHC 24519 (KLR) (Crim) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24519 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application 394 of 2023

LN Mutende, J

November 1, 2023

Between

CKM

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was arraigned following allegations of having committed the offence of defilement. The victim was a child aged five years. In the alternative he faced a charge of committing an Indecent Act with the stated child.

2. Having denied the charges he was taken through full trial, found guilty of the main charge and accordingly convicted. In the result, the court considered mitigation by the Subject, the victim impact statement and Pre-sentence Report by the Probation Officer. Consequently the court ordered the parents of the Subject to deposit in court a sum of Ksh. 80,000/- on his behalf. The stated sum was to cater for the minor victim’s future treatment. In default the Subject was required to serve one (1) year imprisonment.

3. Through an application dated 16th October, 2022, the applicant seeks revision of the committal order committing him to Kamiti Prison and an order for immediate release. And, that the Ksh. 80,000/- paid by the applicant be held to be a satisfaction of the lower court sentence.

4. The application is based on grounds that the applicant is being illegally held in custody and continues to miss his studies at [Particulars Withheld] High School. That he is a form three student under the Scholarship of Equity Foundation under the Wings to Fly Programme.

5. That even after paying the sum of Ksh. 80,000/- ordered by the lower court, the trial court without any reason has refused to sign the release order as required by the law, and, that the applicant is on the verge of losing and being locked out of the Scholarship by Equity Foundation.

6. The revisional power of the High Court is provided for by Section 362 of the Criminal Procedure Code (CPC) that enacts thusThe High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

7. The court’s revisional jurisdiction is limited to examining the legality, propriety, or correctness of an order, or sentence passed by the trial court. In exercising the power bestowed on the court, justice would demand that the regularity of the order be upheld.

8. The applicant herein was fifteen (15) years old when he came into conflict with the law hence a minor. Methods of dealing with a child in conflict with the law are provided for under Section 239 of the Children Act, 2022 that states as follows:(1)Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—(a)Discharge the child under section 35(1) of the Penal Code;(b)Discharge the child on his or her entering into a recognisance, with or without sureties;(c)Make a probation order against the offender under the provisions of the Probation of Offenders Act;(d)Commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;(e)If the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;(f)Order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the child’s parents or guardian;(g)In the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;(h)Place the child under the care of a qualified counsellor or psychologist;(i)Order that the child be placed in an educational institution or vocational training programme;(j)Order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act;(k)Make a community service order;(l)Make a restorative justice order;(m)Make a supervision order;(n)Make any other orders of diversion provided for in this Part; or(o)Deal with the child in any other lawful manner as may be provided under any written law

9. The applicant herein was ordered to compensate the complainant which was in accordance with Section 239 (1) (f) of the Children Act. According to the order of the court, one (1) year imprisonment was a default sentence. But, looking at the warrant of commitment to serve prison sentence, the Subject was sentenced to serve one year imprisonment.

10. There is an error apparent on the face of the record regarding the order/sentence imposed and warrant of committal to serve prison sentence. This calls for correction which I hereby do by setting aside the order that I substitute with the following orders:1. The cash in the sum of Ksh. 80,000/- deposited in court shall be released to the victim’s parent.2. Due to the nature of the case and the impact on the victim, following the recommendation of the Probation Officer, Mr. George Odunga, the Subject will be under Probation Supervision for a period of three (3) years.

11. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 1ST DAY OF NOVEMBER, 2023. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Omwoyo for ApplicantMs. Oduor for ODPPCourt Assistant - Mutai