[2022] KEHC 1115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION - MILIMANI

MISCELLANEOUS APPLICATION NO. E359 OF 2018

ERIC SALIM ..………………………………….......…………PETITIONER

VERSUS

ATTORNEY GENERAL………………..…………..…..1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS …....…..2ND RESPONDENT

RULING

1. Erick Salim, the Petitioner/Applicant herein was charged with the offence of robbery with violence in Makadara Chief Magistrate’s Court Criminal Case No. 6228 of 2011. He filed an appeal to the Superior Court which was dismissed. Subsequently he filed a second appeal to the Court of Appeal which he later withdrew to pursue hearing on re-sentencing. This was following the decision of Muruatetu and Another Vs Republic (2017) eKLRwhere the Supreme Court found that death penalty was unconstitutional. It also found that death sentence was harsh, unjust and unfair. Consequently, trial courts were mandated to conduct re-sentencing hearing. However, following directions given in Francis Muruatetu Vs. Republic (2021) eKLR, it was clarified that orders granted in 2017 were limited to murder cases.

2. In the instant matter the Petitioner filed the Petition jointly with two (2) others who had similar grievances but were sentenced in different matters. At the hearing of this matter, the court was informed that they had pursued re-sentencing elsewhere and were released. Orders sought in the Petition are that:

(a) The Petitioner be released forthwith for violation of his constitutional rights.

(b) That the Petitioner be re-sentenced pursuant to the provisions of Article 53(1) (f) (ii) of the Constitution.

(c) That the court do exercise its inherent powers to do justice taking into account time spent in custody.

3. It was urged by Ms. Julie Soweto, learned counsel for the Petitioner that he committed the offence as a minor, and was convicted and sentenced to suffer death as required by law. That they have challenged the sentence meted out because the trial court did take cognizance of the fact of the applicant having been seventeen (17) years old when the offence was committed, and, at the time of sentencing the Probation Officer’s report noted that he was twenty (20) years old. She cited the case of DKC Vs. Republic (2014) eKLR where the Court of Appeal noted that the guiding factor when a minor commits an offence and at the time of sentencing he is an adult he should be sentenced pursuant to the provisions of Section 191 of the children Act.

4. Also cited was the case of JKK Vs. Republic (2013) eKLR where the appellant committed the offence at the age of 17 years but was sentenced to 12 years imprisonment for the offence of murder.

5. And, in another case, SCL Vs. R (2018) eKLR the appellant was sentenced under the Children Act for purposes of rehabilitating him as a child. The court appreciated that the life of a minor needed to be preserved hence a sentence of ten (10) years was meted out.

6. In response thereto, Ms. Chege, learned counsel for the State urged that re-sentencing was not applicable in the instant case. That the Petitioner did not raise the matter of age in his pleadings. That there were no documents availed to prove he was seventeen (17) years. That he filed an appeal against the conviction and sentence but did not raise the issue of age; an appeal that was dismissed by Hon. Justice Kimaru who affirmed the sentence.

7. In a rejoinder, counsel for the Petitioner argued that defects on the face of the petition that was filed by the Petitioner in person were curable under Article 159 of the Constitution.

8. I have duly considered rival submissions of both counsels. In the locus classicus case of Anarita Karimi Njeru Vs. Republic Misc. Criminal Application No. 4 of 1979, it was stated that Constitutional Petitions must be drafted with reasonable precision. The court delivered itself thus:

“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that Justice is done to his case that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed”

9. This being a constitutional Petition, the Petitioner is duty bound to prove the alleged infraction of the law. The Petitioner who alleges that his rights were infringed must establish the basis of his complaint and the manner of infringement must be ascertained. In the case of Communications Commission of Kenya & 5 Others Vs. Royal Media Services Limited and 5 others (2014) eKLR it was stated as follows:

“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru Vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith.”

10. Looking at the Petition as drawn, the Respondents are accused of having breached the law. The 1st Respondent in particular is stated to have failed to respect, uphold and defend the Constitution and written laws by failing to advice on the application of Section 296(2) of the Penal Code which violates the rights of persons below the age of 18years. However, the law is very clear on that aspect. It is up to the court to establish the age of the minor and act according to the provision of the law. Article 53 (1) (f) of the Constitution provides thus:

(1) Every child has the right-

(f) Not to be detained, except as a measure of last resort, and when detained, to be held—

(i) For the shortest appropriate period of time; and

(ii) Separate from adults and in conditions that take account of the child’s sex and age.

11. It was alleged that the Petitioner was seventeen (17) years old. When he was put on his defence during trial he remained silent, and, he did not raise the age factor on his first appeal. I do note that the issue arose at the outset, but, the trial court failed to interrogate the question of his age as required.

12. It is therefore apparent that at the outset the trial court was informed and it recorded the fact of the allegation of the subject Petitioner being below the age of eighteen (18) years.

13. Section 25 (1) (2) of the Penal Code provides as follows:

(1) Where any person is sentenced to death, the form of the sentence shall be to the effect only that he is to suffer death in the manner authorized by law.

(2) Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.

14. The court was required to ascertain the age of the Petitioner prior to meting out the sentence; And in meting out sentence the court should have been guided by Section 191 of the Children Act that provides thus:

(1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—

(a) By discharging the offender under section 35(1) of the Penal Code (Cap. 63);

(b) By discharging the offender on his entering into a recognisance, with or without sureties;

(c) By making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64);

(d) By committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;

(e) If the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;

(f) By ordering the offender to pay a fine,compensation or costs, or any or all of them;

(g) In the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;

(h) By placing the offender under the care of a qualified counsellor;

(i) By ordering him to be placed in an educational institution or a vocational training programme;

(j) by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);

(k) By making a community service order; or

(l) In any other lawful manner.

Section 191 (1) (l) gives the court the powers to deal with the offender (minor) in any other lawful manner. This means that where a child has attained the age of maturity at the time of sentencing as was the case of the Petitioner, the court could deal with him in any other lawful manner.

15. An in-depth perusal of the matter shows that the supporting affidavit sworn to verify facts by the applicant sought interpretation of Section 296(2) of the Penal Code. The question of age does not arise. Although Counsel for the applicant argued that the anomaly was curable under Article159 of the Constitution; the application having been couched as a constitutional petition, it behooved the Petitioner to establish the basis of the allegations so as to ascertain the alleged violation of rights.

16. This matter was before a court of competent jurisdiction and having been aggrieved by the decision, the Petitioner who was represented by counsel appealed to the High Court, a court that was presided over by a judge who had similar legal authority with this court (concurrent jurisdiction). That particular court was better placed to deal with the issue raised. The jurisdiction of the 1st appellate court includes setting aside a sentence that is made outside the parameters of the law. The fact of the

sentence having been upheld on appeal means that the trial court’s proceedings and subsequent judgment were re-considered by the appellate court. In case of dissatisfaction, the aggrieved party would be expected to prefer a second appeal to the Court of Appeal.

17. As aforestated, the trial court’s omission to considerSection 25 of the Penal Code which would have guided it to reach a finding that the accused (Petitioner herein) should not have been ordered to suffer death was a misdirection. This was not a constitutional issue but an issue that was to be determined in a criminal trial. Issues that should have been interrogated by the Appellate Court.

18. The upshot of the above is that this court being of a concurrent jurisdiction with a first appellate court that heard the appeal, cannot purport to adjudicate on the matter again. The decision was given which is conclusive and the avenue available for the Petitioner is to move to the court of appeal.

19. In the premises, I decline to grant orders sought. Consequently, the Petition fails and is accordingly dismissed.

20. It is so ordered.

Dated, Signed and Delivered Virtually at Nairobi this

15th Day of March, 2022.

L. N. MUTENDE

JUDGE