[2019] KEHC 7876 (KLR)
The court found that the appellant was a minor aged 17½ years at the time of the offence, as confirmed by the Age Assessment Report. The trial court, despite being aware of this, sentenced him to three years imprisonment, contrary to Section 191 of the Children’s Act, which prescribes alternative modes of punishment...
Source-derived case information.
- Citation
- [2019] KEHC 7876 (KLR)
- Parties
- Appellant: Kennedy Onyango Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 63 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Revision
- Outcome
- appeal withdrawn; sentence revised; appellant unconditionally discharged
- Judges
- RE Aburili
- Legal Topics
- Juvenile Sentencing, Illegal Sentence, Children Act Section 191, Sentence Revision, Rehabilitation of Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Onyango Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Withdrawal of Appeal and Sentence Revision
Legal Issues
- 1 Whether the sentence imposed on the appellant, a minor at the time of the offence, was lawful under the Children’s Act.
- 2 Whether the appellant should be discharged from prison following withdrawal of the appeal and sentence revision.
Ratio Decidendi
The court found that the appellant was a minor aged 17½ years at the time of the offence, as confirmed by the Age Assessment Report. The trial court, despite being aware of this, sentenced him to three years imprisonment, contrary to Section 191 of the Children’s Act, which prescribes alternative modes of punishment for minors. The High Court held that the sentence was illegal and warranted revision. Given that the appellant had already served nearly one year in prison and had been initially placed in a children’s remand, the court determined that he had learned his lesson. The court emphasized the importance of rehabilitation and life skills over custodial sentences for minors....
Court Disposition
appeal withdrawn; sentence revised; appellant unconditionally discharged
Orders
- The appeal is marked as withdrawn.
- The sentence of three years imprisonment is revised and substituted with an unconditional discharge from prison.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 63 OF 2018
(CORAM: R. E. ABURILI - J.)
KENNEDY ONYANGO OTIENO...................APPELLANT
VERSUS
REPUBLIC......................................................RESPONDENT
RULING
1. The Appellant has applied to withdraw his Petition of Appeal and urges the court to forgive him because he committed the offence. The Prosecution has no objection to such withdrawal. Accordingly, this appeal is hereby marked as withdrawn.
2. Nonetheless, the trial court record shows that as at 14/2/2018, the Appellant was a minor aged 17½ years as per the Age Assessment Report from Dr. Teresa Agwanda, Siaya County Referral Hospital.
3. The Trial Court was cognizant of this fact but went ahead to sentence the appellant to 3 years imprisonment. By appearance the appellant is a very young adult now who deserved to be rehabilitated through guidance and counselling as per the Probation Officer’s Report dated 1/11/2018.
4. That he was a petty thief in the community and that is why nobody talked good of him. He abuses alcohol and drugs.
5. That may be the case but life’s skills and empowerment intervention were more critical than prison sentence. As the Appellant was 17½ years when he committed the offence, he was a minor hence he should have been sentenced in accordance with Section 191 of the Children’s Act which sets out the many modes of punishment such a young person should be accorded.
6. The sentence, as correctly submitted by Ms. Odumba, Prosecution Counsel, was illegal. It cannot stand. This was a proper case for Sentence Revision. As the Appellant has already served nearly one year in prison and since he was initially placed in Children’s Remand at Kisumu, he has learnt his lesson. As an adult now, he will face the full force of the law if he engages in any criminal activities.
7. In the premises, I hereby revise the sentence of 3 years imprisonment and substitute it with an order discharging the appellant from Prison unconditionally. He is forthwith set at liberty unless otherwise lawfully held.
Orders accordingly.
Dated, Signed and Delivered in Open Court at Siaya this 26th Day of February 2019.
R.E. ABURILI
JUDGE