[2019] KEHC 8550 (KLR)

[2019] KEHC 8550 (KLR)

The court held that since the petitioner was sentenced to detention at the President's pleasure solely because he was a child at the time of the offence, and in light of the Supreme Court's decision in Muruatetu and subsequent authorities, the sentence is unconstitutional. The court further found that indefinite...

Source-derived case information.

Citation
[2019] KEHC 8550 (KLR)
Parties
Applicant: DMO; Respondent: Republic
Court
High Court
Court Station
High Court at Kisii
Jurisdiction
Kenya
Judgment Date
12 April 2019
Case Number
Constitutional Petition 29 of 2019
Procedural Posture
Constitutional Petition / Judgment
Outcome
petition allowed
Judges
DAS Majanja
Legal Topics
Resentencing, Juvenile Justice, Mandatory Sentences, Cruel Inhuman Punishment
Source Language
english
Criminal Law Constitutional Law Resentencing Juvenile Justice Mandatory Sentences Cruel Inhuman Punishment

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Summary, issues, holding and outcome

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Parties

DMO

Applicant

Republic

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the petitioner, sentenced to detention at the President's pleasure as a child, is entitled to resentencing following the Supreme Court's decision in Muruatetu.
  2. 2 Whether detention at the President's pleasure under section 25(2) of the Penal Code is constitutional in light of the Bill of Rights and Article 53 of the Constitution.

Ratio Decidendi

The court held that since the petitioner was sentenced to detention at the President's pleasure solely because he was a child at the time of the offence, and in light of the Supreme Court's decision in Muruatetu and subsequent authorities, the sentence is unconstitutional. The court further found that indefinite detention at the President's pleasure violates the Bill of Rights, specifically the prohibition against cruel, inhuman or degrading punishment and the constitutional protection of children's rights. The only appropriate remedy was to substitute the unconstitutional sentence with a determinate sentence. Given the petitioner's age at conviction, the period already served, and the...

Court Disposition

petition allowed

Orders

  • The petition is allowed.
  • The sentence of detention at the President's pleasure is substituted with imprisonment for time served.