[2021] KEHC 7832 (KLR)
The court found that sentencing a minor to imprisonment is expressly prohibited by section 190 of the Children.s Act. The applicant, being 16 years and 4 months old, was unlawfully sentenced to imprisonment by the trial magistrate. The High Court, exercising its revisionary jurisdiction under section 364 of the...
Source-derived case information.
- Citation
- [2021] KEHC 7832 (KLR)
- Parties
- Applicant: CKW; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E027 of 2021
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence set aside; applicant placed on probation
- Judges
- MM Kasango
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CKW
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether sentencing a minor to imprisonment is lawful under Kenyan law.
- 2 Whether the sentence imposed by the trial magistrate should be revised in light of the applicant's age.
Ratio Decidendi
The court found that sentencing a minor to imprisonment is expressly prohibited by section 190 of the Children.s Act. The applicant, being 16 years and 4 months old, was unlawfully sentenced to imprisonment by the trial magistrate. The High Court, exercising its revisionary jurisdiction under section 364 of the Criminal Procedure Code, set aside the sentence of imprisonment and substituted it with a probation order, taking into account the applicant's age and the probation report. The court emphasized the statutory protection afforded to children in conflict with the law and the requirement for sentences that are rehabilitative rather than punitive.
Court Disposition
sentence set aside; applicant placed on probation
Orders
- The sentence by the Senior Resident Magistrate in Githunguri Criminal case NO. 234 of 2021 of the subject CKW is hereby set aside.
- The subject CKW shall be set free from custody.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL REVISION CASE NO. E027 OF 2021
CKW.........................................................................................................................APLLICANT
VS.
REPUBLIC...........................................................................................................PROSECUTOR
(Being a Revision of the order made on 17th march 2021
in SPM Githunguri criminal case NO. 234 of 2021)
RULING
1. CKW, the subject hereof, is 16years and 4 months old.
2. The subject was charged before the Senior Principal Magistrate’s Court at Githunguri on five counts of the offence of house breaking contrary to section 304 (1) (b) and the offence of stealing contrary to section 279 (b) of the Penal Code. On 9th March 2021 the subject pleaded guilty to all the counts. The learned trial Magistrate sentenced him to various terms of imprisonment.
3. As stated before the subject is a minor and accordingly his sentence to serve imprisonment is unlawful. It is so provided under section 190 of the children’s Act which provide
“190. Restriction on punishment
(1)No child shall be ordered to imprisonment or to be placed in a detention camp.
(2)No child shall be sentenced to death.
4. This matter has been brought to the High Court for Revision under section 364 of the Criminal procedure Code. In that respect I requested a probation report to assist the court which I confirm I have considered.
5. Accordingly I make the following Orders:
a. The sentence by the Senior Resident Magistrate in Githunguri Criminal case NO. 234 of 2021 of the subject CKW is hereby set a side. The subject CKW shall be set free from custody.
b. The subject CKW is hereby sentence to serve one year under Probation.
RULING DATED AND DELIVERED AT KIAMBU THIS 12TH DAY OF APRIL, 2021.
MARY KASANGO
JUDGE