[2016] KEHC 2021 (KLR)

JMG v Republic (Criminal Appeal 227 of 2010) [2016] KEHC 2021 (KLR) (18 November 2016) (Judgment)

J M G v Republic [2016] eKLR

Neutral citation: [2016] KEHC 2021 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal 227 of 2010

J Ngaah, J

November 18, 2016

Between

JMG

Appellant

and

Republic

Respondent

(Appeal from original conviction and sentence in Othaya Resident Magistrates’ Court Criminal Case No. 165 of 2010 (Hon. B.M. Nzakyo, Resident Magistrate) on 25th August, 2010)

Judgment

1. The appellant was tried and convicted of the offence of attempted defilement contrary to section 9 of the Sexual Offences Act No. 3 of 2006. According to the particulars of the offence, on the 14th day of April, 2010 in Nyeri South district within central province, the appellant willfully and unlawfully attempted to defile E W, a girl aged eight. He was sentenced to 10 years’ imprisonment but being dissatisfied with the decision of the subordinate court he appealed to this Honourable Court against both the conviction and sentence; the grounds upon which he appealed can be summarised as follows: -1. The learned magistrate erred both in law and in fact in conducting criminal proceedings against the provisions of the Children Act, cap 141. 2.The learned magistrate erred both in law and in fact in convicting the appellant without evidence that the offence of attempted defilement had been committed and therefore the case against him was not proved beyond reasonable doubt.

2. Counsel for the appellant submitted that the appellant was a child, a fact that the trial court was well aware of from the very beginning. That being the case, so he submitted, the appellant ought not to have been tried as an adult. Secondly, it was submitted on behalf of the appellant, that there was no medical evidence of any sexual assault

3. Counsel for the state, on the other hand, opposed the appeal and in particular argued that since the appellant was aged 17 he was liable to criminal liability under section 14(3) of the Penal Code, cap 63. She however conceded that section 189 of the Children Act was not complied with because the words “conviction” and “sentence” were used in the learned magistrates’ judgement. Counsel also conceded that the sentence meted out against the appellant was illegal as it was contrary to the provisions of section 190(1) of the Children Act which provides that no child should be ordered to imprisonment or be placed in a detention camp. Counsel urged the Court to uphold the conviction of the appellant but review the sentence.

4. It is common ground that the appellant was aged 17 at the time material to his trial; indeed, this is what was indicated as his age in the charge sheet. Under section 2 of the Children Act which defines a child as any human being under the age of 18 years, the appellant was a child and therefore he was subject to those provisions in that Act which regulate criminal proceedings against any child who is in conflict with the law. These provisions are found in Part XIII of the Act and of particular interest to this appeal are sections 184,186,189 and 190 thereof. It is necessary to consider each of these provisions in detail.

5. Section 184 deals with the jurisdiction of the children’s court and it states:(1)Notwithstanding the provisions of Parts II and VII of the Criminal Procedure Code (Cap. 75), a Children’s Court may try a child for any offence except for—(a)the offence of murder; or(b)an offence with which the child is charged together with a person or persons of or above the age of eighteen years.(2)References to subordinate courts of any class, in the First Schedule to the Criminal Procedure Code (Cap. 75), include a Children’s Court.

6. It is apparent that save for the exceptions provided in subsection (1)(a) and (b) a child offender should be tried in a special court. For avoidance of doubt section 185 (1) of the Act is clear that where for one reason or another, a child is charged in a court other than the children’s court, yet he is not charged with the offence of murder or is not charged with an adult or adults, then it is incumbent upon the court in which he has been charged to remit the case to a children’s court.

7. Hon. Benson M. Nzakyo who tried the appellant was gazetted to preside over cases involving children on 23rd January, 2009 and therefore had the jurisdiction to preside over the appellant’s trial. This being the case, the question whether the case should have been remitted to a court of competent jurisdiction did not arise. However, as much as the leaned magistrate was clothed with the appropriate jurisdiction, there are certain provisions in the Act, that the court appears to have overlooked and in the process prejudiced the appellant’s right to a fair trial. These provisions primarily relate to the safeguards to be accorded to a child offender. Section 186 of the Act maps out some of these rights; it states:186. Guarantees to a child accused of an offence Every child accused of having infringed any law shall—(a)be informed promptly and directly of the charges against him;(b)if he is unable to obtain legal assistance, be provided by the Government with assistance in the preparation and presentation of his defence;(c)have the matter determined without delay;(d)not be compelled to give testimony or to confess guilt;(e)have free assistance of an interpreter if the child cannot understand or speak the language used;(f)if found guilty, have the decisions and any measures imposed in consequence thereof reviewed by a higher court;(g)have his privacy fully respected at all the proceedings;(h)if he is disabled, be given special care and be treated with the same dignity as a child with no disability

8. This section essentially prescribes the basic rights that a child offender is entitled to including such rights as the right to legal representation and the right to privacy.

9. Section 189 provides a further safeguard in relation to the proceedings against a child particularly where his found guilty of the offence with which is been charged; it says:189. Words “conviction” and “sentence” not to be used of childThe words “conviction” and “sentence” shall not be used in relation to a child dealt with by the Children’s Court, and any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding, as the case may be.

10. And where he has been convicted the child cannot be sentenced as if he is an adult; the Act is clear in section 190 that a child cannot be subjected to imprisonment nor can he be sentenced to murder or sent to a rehabilitation school if he is under the age of 10 years.

11. There is no evidence on record that the trial court gave any regard to these safeguards; the record shows, for instance, that the appellant represented himself. There is also nothing on record that suggests that during the appellant’s trial, his right to privacy was considered at all.

12. In further breach of the law, the court proceeded to use the prohibited words of “conviction” and “sentence” in its judgement against him. This is what the learned magistrate said in conclusion of his judgement:“For the reasons above said this court finds the accused person is guilty as charged and I therefore convict him with the offence of attempted defilement and the provisions of section 215 CPC.”

13. The trial court went further to state;“The accused person is not remorseful at all for what he did. The offence committed is serious. I therefore sentence accused person to serve 10 years time imprisonment.”

14. The learned magistrate’s use of language was clearly in contravention of section 189 of the Act. Apart from the use of prohibited language, it is also clear that the learned magistrate imprisoned the appellant in breach of section 190 of the Act which proscribes incarceration of children in prison.

15. In the face of these violations of the law, it is not difficult to conclude that the trial of the appellant was invalid; it was a mistrial at the very least and in such circumstances the appellant’s conviction cannot be sustained.

16. I have agonised over whether this is an appropriate case for a retrial but am hesitant to take that course mainly for two reasons; it is quite unlikely that the infringement of the appellant’s rights will be mitigated by such a course- he is obviously an adult now and if he was subjected to a fresh trial he would certainly be tried as such; those rights which he would have enjoyed as a child offender are no longer available to him.

17. Secondly, he has been in prison for the past six years serving what in effect is an unlawful sentence which in itself is based on an erroneous conviction. Subjecting the appellant to a fresh trial will effectively be perpetuating the illegalities that have been visited upon him; in my humble view, a more just course would be to set him free.

18. It is appreciated that the resolution of this appeal has turned much on law rather than on facts; I find it unnecessary to evaluate the evidence that was proffered at the trial in these circumstances. I am of the humble view that a fresh examination of the evidence would be nothing more than an academic exercise for the simple reason that it will not be of any consequence; whether my findings on facts are consistent or inconsistent with those of the learned magistrate the end result would remain the same-that the appellant’s trial was a mistrial.

19. For the foregoing reasons, I allow the appeal quash the appellant’s conviction and set aside the sentence. The appellant is set at liberty unless he is lawfully held.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 18TH DAY OF NOVEMBER, 2016NGAAH JAIRUSJUDGE