[2018] KEHC 1488 (KLR)
The court found that the appellant was a child at the time of the offence, as confirmed by age assessment and his own unchallenged testimony. The trial court erred by sentencing him to death without considering the sentencing provisions applicable to children under section 191(1) of the Children Act. Given the...
Source-derived case information.
- Citation
- [2018] KEHC 1488 (KLR)
- Parties
- Appellant: Joe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 39 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; appeal on sentence allowed in part
- Judges
- DAS Majanja
- Legal Topics
- Robbery With Violence, Sentencing of Children, Age Assessment, Penal Code Section 296 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joe
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was a child at the time of the offence and should have been sentenced as such.
- 2 Whether the sentence of death was appropriate given the appellant's age.
Ratio Decidendi
The court found that the appellant was a child at the time of the offence, as confirmed by age assessment and his own unchallenged testimony. The trial court erred by sentencing him to death without considering the sentencing provisions applicable to children under section 191(1) of the Children Act. Given the seriousness of the offence and the violence used, a custodial sentence was warranted, but not the death penalty. The court substituted the death sentence with a six-year imprisonment term, ordering that the appellant serve the balance of his sentence under probation supervision.
Court Disposition
sentence varied; appeal on sentence allowed in part
Orders
- The sentence of death is quashed and substituted with a sentence of six years imprisonment.
- The appellant is to be released to serve the balance of his term under Probation.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
CORAM: D.S MAJANJA J.
CRIMINAL APPEAL NO. 39 OF 2016
BETWEEN
JOE................................................................APPELLANT
AND
REPUBLIC................................................RESPONDENT
(Appeal from the original conviction and sentence of Hon. J. Were, PM dated 23rd April 2015 at the Principal Magistrate’s Court at Nyamira in Criminal Case No. 1095 of 2014)
JUDGMENT
1. The appellant, JOE, was charged, convicted and sentenced to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya). The charge against him was as follows:
On the night of 5th November 2014 at Bokiambori Sublocation in Nyamira District within Nyamira county while armed with dangerous weapon namely a panga robbed NO of cash Kshs. 2,000/= and a mobile phone make Nokia valued at Kshs. 2,000/= all amounting to Kshs. 4,000/= and immediately before the time of such robbery used actual violence to the said NO.
2. At the hearing of the appeal, the appellant urged the court to reconsider the sentence as he was a child when he committed the offence.
3. According to the judgment, the trial magistrate indicated that, “the accused person though initially indicated to be a minor but subsequently confirmed to be an adult ….”
4. I have reviewed the record and it shows that the appellant was initially arraigned in court, he was deemed to be a child and was in fact remanded in a Children’s home pending trial. An age assessment was ordered and the doctor confirmed on 2nd February 2015 that he had a dental age of “16 – 17 years of age.” I did not see any other determination of his age in the proceedings. At any rate when he was put on his defence and gave sworn testimony he stated he was 16 years old. The prosecution did not cross examine him on this point.
5. The totality of the evidence is that the appellant ought to have been sentenced as a child in accordance with section 191(1) of the Children Act. Given the seriousness of the offence and the deliberate act of violence inflicted on the complainant, a jail term was well deserved as an option for the sentence (see RKS v Republic NKR HCCRA No. 25 of 2016 [2018]eKLR). The appellant has been in pre-trial detention and prison for a total term of 4 years and no doubt he has learnt his lesson.
6. As the trial court did not consider the options available to the appellant, I quash the sentence of death and substitute it with a sentence of six (6) years imprisonment. However, order that the appellant be released to serve the balance of his term under Probation. The Probation Officer Nyamira County to be informed of this judgment.
DATED and DELIVERED at KISII this 18th day of DECEMBER 2018.
D.S MAJANJA
JUDGE
Appellant in person.
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.