[2023] KEHC 530 (KLR)
The High Court found the sentence of 2 years in a borstal institution imposed on the minor applicant to be irregular and unlawful, as the Borstal Institutions Act mandates a minimum period of three years for such committal. Taking into account the applicant's age, status as a first offender, the nature of the...
Source-derived case information.
- Citation
- [2023] KEHC 530 (KLR)
- Parties
- Applicant: JMN; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E121 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Revision of Sentence
- Outcome
- sentence set aside; applicant placed on probation
- Judges
- K Kimondo
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Probation Orders, Borstal Institution Commitment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JMN
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Sentence
Legal Issues
- 1 Whether the sentence of 2 years in a borstal institution for a minor convicted of preparation to commit a felony was lawful and appropriate.
- 2 Whether the applicant, being a minor and first offender, should be placed on probation instead of borstal commitment.
Ratio Decidendi
The High Court found the sentence of 2 years in a borstal institution imposed on the minor applicant to be irregular and unlawful, as the Borstal Institutions Act mandates a minimum period of three years for such committal. Taking into account the applicant's age, status as a first offender, the nature of the offence, and the recommendation in the pre-sentence report, the court determined that the best interests of the child would be served by setting aside the borstal sentence and substituting it with a probation order. The applicant was thus sentenced to serve 2 years probation under supervision, with specific conditions regarding residence and counselling, in accordance with the...
Court Disposition
sentence set aside; applicant placed on probation
Orders
- The sentence of 2 years in a borstal institution is set aside.
- The applicant is sentenced to serve probation for 2 years under the Probation of Offenders Act from the date of the order.
Full Case Text
Judgment text and source record
24 paragraphs
JMN v Republic (Criminal Revision E121 of 2023) [2023] KEHC 530 (KLR) (Crim) (7 February 2023) (Ruling)
Neutral citation: [2023] KEHC 530 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E121 of 2023
K Kimondo, J
February 7, 2023
Between
JMN
Applicant
and
Republic
Respondent
(Revision from the sentence in Makadara Criminal Case 3641 of 2022 by M. Thirabu, Resident Magistrate, delivered on 2nd November 2022)
Ruling
1. The revision on sentence was requested on January 25, 2023 by the learned trial magistrate sitting at Makadara.
2. The subject is a minor aged about 15 years. He was convicted under a plea bargaining agreement for preparation to commit a felony contrary to section 308 (1) of the Penal Code. The learned trial magistrate committed him to a borstal institution for 2 years.
3. The particulars were that on July 14, 2022 at Dr Griffin road, Starehe sub-county with another not before the court was found armed with a dangerous weapon namely a knife in circumstances that indicated he was so armed with intention to commit a felony.
4. I readily find that sentence handed down was irregular because section 6 (1) of the Borstal Institutions Act requires a residential period of at least three years. I have now considered the pre-sentence report filed on December 8, 2022 by the probation and aftercare service which recommends a probation order. I have also taken into account that the applicant is a first offender and the nature and circumstances of the offence.
5. In the best interests of the minor, and in accordance with section 191 (1) of the Children Act, I hereby set aside the sentence by the lower court. Instead, I sentence the applicant to serve probation for 2 years under the Probation of Offenders Act from the date of this order. The probation shall be under the supervision of the Murang’a county probation officer. During that period, the applicant shall reside with his mother in Murang’a and must undergo counselling at the Youth Centre at Kigumo hospital in Murang’a.
6. This matter shall now be remitted back to the trial court with the following further order: That in accordance with section 4 (3) of the Probation of Offenders Act, the learned trial magistrate shall explain to the offender in ordinary language his willingness to comply with the order made by the High Court and the effect of the order and that, if he fails in any respect to comply therewith or commits another offence, he will be liable to be sentenced for the original offence.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF FEBRUARY 2023. KANYI KIMONDOJUDGERuling read in chambers in the presence of-Mr. E. Ombuna, Court Assistant.