[2010] KEHC 3661 (KLR)
The court found that sentencing the appellant to imprisonment before confirming he had attained 18 years was unlawful. The trial court failed in its duty to conduct an age assessment and consider alternative sentences as required by law for juvenile offenders. The ten months already served constituted an illegal...
Source-derived case information.
- Citation
- [2010] KEHC 3661 (KLR)
- Parties
- Appellant: C N O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 45 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Juvenile Sentencing, Shop Breaking, Plea of Guilty, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C N O
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of four years imprisonment imposed on the appellant, who was under 18 years old at the time of sentencing, was lawful.
- 2 Whether the appellant should be granted a non-custodial sentence considering his age and educational prospects.
Ratio Decidendi
The court found that sentencing the appellant to imprisonment before confirming he had attained 18 years was unlawful. The trial court failed in its duty to conduct an age assessment and consider alternative sentences as required by law for juvenile offenders. The ten months already served constituted an illegal sentence, and further incarceration was unwarranted. The court emphasized the importance of considering the appellant's educational needs and the broader societal benefit of allowing him to continue his education. Consequently, the custodial sentence was set aside and the appellant ordered released.
Court Disposition
appeal_allowed
Orders
- The sentence of four years imprisonment is set aside.
- The appellant is released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Criminal Appeal 45 of 2009
(Appeal arising from Original Webuye SRM Cr. No.542 of 2009)
C.N.O………………………………………………………….APPELLANT
~VRS~
REPUBLIC…………………………………………………RESPONDENT
JUDGMENT
The Appellant C N O was charged and convicted on his own plea of guilty by Webuye Senior Resident Magistrate for an offence of shop breaking and committing a felony contrary to section 306 (a) of the Penal Code. He was sentenced to serve four (4) years imprisonment. He appeals to this court against the sentence which he says is too harsh. He prays for a non custodial sentence pleading that he is only eighteen (18) years of age and is waiting to join university. He was sentenced to imprisonment at the time that he was only 17 years old.
The appeal was not opposed by the state. Mrs. Leting conceded to the appeal and asked the court to consider the educational needs of the Appellant and release him.
The Appellant was sentenced to imprisonment before he attained 18 years which was not lawful. The court had a duty to observe the Appellant and confirm his age by way of age assessment. This would have resulted to an alternative sentence derived from the options provided by the law. He has already served ten (10) months which is an illegal sentence. I do not find it proper to place him on probation. The period he had served in prison at his young age is more than enough. I agree with the state that the Appellant’s educational needs ought to be considered. If he continues with his education, it is for his own good and for the good of this nation.
The sentence of four (4) years imprisonment is hereby set aside. The Appellant is released forthwith unless otherwise lawfully held.
F. N. MUCHEM
JUDGE
Dated, Delivered and Signed at Bungoma this 2nd day of March, 2010.
In the presence of the Appellant and the state counsel Mrs. Leting.