[2022] KEHC 10826 (KLR)

Kibet v Chief Magistrate, Molo Law Courts & 3 others (Petition 7 of 2020) [2022] KEHC 10826 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10826 (KLR)

Republic of Kenya

In the High Court at Nakuru

Petition 7 of 2020

HK Chemitei, J

June 9, 2022

Between

Dennis Koech Kibet

Petitioner

and

Chief Magistrate, Molo Law Courts

1st Respondent

Director of Public Prosecutions

2nd Respondent

Attorney General

3rd Respondent

State

4th Respondent

Judgment

1. The petitioner herein moved the court through an amended petition dated 2nd June 2020 against the respondents jointly and severally claiming damages as hereunder.a)A Declaration that the rights of the Petitioner were violated and or infringed by the 1st and 2nd Respondent.b)A Declaration that the rights having been violated entitles the petitioner to compensation.c)An order for compensation in terms of exemplary and aggravated damages arising from the violation of the rights above cited and for the period entailed.d)Costs of the petition be borne by the Respondents.

2. The petition herein is as result of the criminal case filed against the petitioner namely, Nakuru Chief Magistrate Court Criminal Case No. 198 of 2011, Republic vs Dennis Koech Kibet in which he was convicted under Section 215 of the Criminal Procedure Code cap 75 Laws of Kenya, on the 13th day of March 2014 and imprisoned to 20 years.

3. The petitioner claimed that he was a minor at the time he was charged that is 14 years as per the immunization card that was produced and at the time he was convicted he was 17 years as per the date of birth being 7th January 1997.

4. He went on to state in his petition that his rights were violated by both the 1st and 2nd respondents as he was charged, prosecuted and convicted as an adult in a Chief Magistrate’s Court instead of the Children’s Court. That he was also not afforded services of an advocate or benefit of counseling and or advise by a Children’s officer.

5. The petitioner went on to aver that his fundamental rights under Articles 50 (2)(h), 53(1)(f) and 2 the Constitutionof Kenya, 2010, Section 4(2) and (3), Section 5, Section 72, Section 77 of the Children Act and part XIII of the Children’s Act were breached by the 1st and 2nd respondents. That the respondents were obligated to ensure that the rights and fundamental freedoms were met with minimal inconveniences and the period of 38 months that the petitioner’s right were violated.

6. He went on to state that the 2nd respondent had the obligation under the constitution including but not limited to amending the charges from reading the petitioner was an adult to read that he was a minor, or amend it and include both the petitioner and the then complainant. He averred that the 2nd respondent could also have requested the matter to be taken to the Children’s Court as he had in possession all evidence that guided it to know the status of the petitioner. That the 2nd respondent therefore failed in its obligation.

7. The petitioner stated that petition was brought under the provisions of Article 19(1) (2) (3) (a)(b)(c) as well as Articles 20 all through to 23 on the one part and Article 51 of the Constitution of the Republic of Kenya. The Petitioner stated further that by dint of Article 1 (1) and 2 (1) the Constitution of Kenya, 2010 permits him to seek redress as a Kenyan citizen and the 1st and 2nd respondents state organs.

8. The petition is supported by an affidavit sworn by the petitioner which reiterates the contents of the petition.

9. The 1st, 3rd and 4th respondent filed a response to the petition dated 16th July 2020 where they admitted the contents of paragraph 6 but denied those of paragraph 7 and averred that there was no evidence at the time of the criminal proceedings in the magistrate court that the petitioner was a minor. They further denied the contents of the paragraph 8 and stated that it was the onus of the petitioner to raise the issue that he was a minor in court to enable the court make an informed decision during the trial and how to conduct the proceedings.

10. The 1st, 3rd and 4th respondents stated that the issue of the age of the petitioner was never raised in the entire proceedings in the magistrate’s court and even in the charges and hence there was no way the 1st respondent would tell that the petitioner was a minor. That further, when the petitioner raised the issue of age, the state remedied the mistake by quashing the conviction of the magistrates’ court and the petitioner thus benefited.

11. The said respondents further denied that the petitioner’s right to a fair trial was infringed as he did not inform the 1st respondent that he was a minor. That further to paragraph 14,15,16,17,18,19 and 20 of the petition, the 1st, 3rd and 4th respondent admitted the contents thereof as far as the articles of the Constitutionof Kenya and rights belonging to all citizens of Kenya save to add that it did not infringe, violate or breach any of the said rights.

12. The 2nd respondent filed a response to the petition dated 14th February 2022 where it denied the contents of paragraph 7 of the petition and averred that there was no evidence at the time of the criminal trial and the same indicated in the proceedings in the magistrate court that the petitioner was a minor. The contents of paragraph 8 were also denied and the 2nd respondent stated that the petitioner had all avenues to seek redress by way of appeal or review to a higher court.

13. The 2nd respondent denied having turned a blind eye to the rights of the petitioner. It stated that it was the onus of the petitioner to raise the issue that he was a minor in court to enable the court make an informed decision during the trial and how the trial was conducted. The 2nd respondent went on to state that the petitioner had not exhausted his review or appeal options, and neither is it indicated whether the petitioner is still serving sentence.

14. In response to paragraph 9 the 2nd respondent stated that there was no willful contravention so as to infringe, violate and breach any constitutional right in considering age of the minor. The 2nd respondent went on to deny that the petitioner was denied his right to fair trial, that the trial was conducted above board and that the same was done intentionally. That further to paragraph 14,15,16,17,18,19 and 20 of the petition, the 2nd respondent admitted the contents thereof as far as the articles of the Constitutionof Kenya and rights belonging to all citizens of Kenya save to add that it did not infringe, violate or breach any of the said rights.

15. The petitioner responded to the 2nd respondent’s response by filing a response on 17th February 2022. He reiterated all the contents in the petition and discounted all the contents in the 2nd respondent’s response save where the same admitted to the contents of the petition.

16. When the matter came up for hearing the court directed the parties to file their written submissions but only the petitioner complied.

Petitioner’s Submissions 17. The petitioner in his submission identified the issues for determination to include whose responsibility was it to present evidence and material particulars to court including the fact that the accused person was a minor. He submitted that the 2nd respondent was mandated under Article 157 (6) of the Constitutionof Kenya 2010 of prosecuting any criminal case.

18. Secondly, whether the respondent turned a blind eye to petitioner’s rights and freedom, he submitted that the 2nd respondent turned a blind eye to his fundamental rights given his acquittal by the high court in Criminal Appeal Number 67 of 2014.

19. On the third issue regarding the finding of guilty by the trial court and the acquittal by the superior court he submitted that it was not enough that he was freed by the said superior court as what would be of the wasted years in prison. That Articles 22(1) and 23(3) of the Constitution provided for the required reliefs when the rights of a person had been infringed.

20. On the last issue, he submitted that the sole remedy remaining was compensation. He draws the court’s attention to the cases of Julius Kamau Mbugua v Republic [2010] eKLR and Homabay Constitutional Petition Number 1 of 2017 P.O.O (A minor) v DPP & SRM Mbita Law Courts where the petitioner was awarded Kshs. 200,000/= as compensation after it was established that his rights had been infringed. He urged the court that he too be awarded compensation in terms elaborated in his submissions.

Analysis and Determination 20. Upon analyzing the facts of the case, evidence and the submissions tendered by the petitioner, the following issues fall for determination namely; whether the petitioner’s constitutional rights as a child were infringed and whether the petitioner is entitled to damages.

21. Article 23(1) of Constitution provides that the High Court has the jurisdiction in accordance with Article 165, to hear and determine applications for redress of denial, violation and infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. In particular, Article 165(3) (d) of the Constitution states that the High Court has jurisdiction to hear any question respecting the interpretation of the constitution including the determination of the question whether anything said to be done under the authority of the constitution or any law is inconsistent with, or in contravention of the constitution.

22. In addressing the 1st issue whether the petitioner’s constitutional rights as a child were infringed, Article 2 (5) of the Constitution 2010 provides that the general rules of international law shall form part of the law of Kenya. Article 37(c) of the UN Convention on the rights of the child provides that:“….in particular every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so…”

23. Section 8(7) of the Sexual Offence Act No. 3 of 2006 provides as follows: -“Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.”

24. Article 53(1) (f) of the Constitutionof Kenya provides that“Every child has the right not to be detained, except as a last resort, and when detained, to be held –i.for the shortest appropriate period of timeii.Separate from adults and in conditions that take account of the child’s sex and age.

25. The court in GO v Republic [2017] eKLR held as follows;“As a matter of fact, the conduct of the Respondents contravened Article 53(2) of the Constitution of Kenya; the best interest of the child was not taken into consideration. In my view, the aforementioned rights of the Petitioner were infringed; the said contravention may bruise the Petitioner for the rest of his life.”

26. Section 190(1) of the Children Act provides: -“No child shall be ordered to imprisonment or to be placed in a detention camp.”

27. In the instant case, it is noted that the petitioner appealed the lower court decision vide Criminal Appeal No. 67 of 2014 and the high court allowed his appeal and he was acquitted. The high court in its judgment concluded that the petitioner was indeed a minor both at time of committing the offence and the time of sentencing upon relying on the testimonies on oath by Josephine the mother to the petitioner who produced an Immunization card indicating the date of birth as 7th January 1997 and by the Assistant Chief who told the court that the petitioner was 15 years and in standard six when charged in court. The court concluded that;“Given the circumstances of this case, it is the duty of this Court to quash the conviction and set aside the sentence imposed which I hereby do, The Appellant shall be set at liberty unless otherwise lawfully held in custody”

28. In view of the above it is true that the petitioner was acquitted of the offence. However, the appellate court in acquitting him did not state that the appellant had not committed the offence and further there was no evidence that he was not found guilty. The lower court proceedings clearly found him guilty namely that he had defiled the complainant. I have perused the entire lower court proceedings and save for the fact that there was a mistrial owing to his age he was guilty of the offence.

29. More importantly and upon perusing the proceedings generally, there is nothing to show that the petitioner suffered any prejudice. He was granted bail which he readily afforded after it was revised by the trial court and it cannot therefore be said that he was all through incarcerated with adults. He conducted his trial faithfully by cross-examining witnesses when required as well as offering his defence after proper explanation by the court. In my view he appreciated his trial and the environment he was in and there was therefore no infringement of any of his fundamental constitutional rights.

30. Even for arguments sake and looking at the period in which the proceedings took and the clarity with which the petitioner conducted himself during trial, there was nothing difficult for him to have explained his age. The petitioner for example in his defence told the court that the complainant was his girlfriend and he was already operating a hotel. How could such a minor who was already earning an income fail to explain to the court that he was underage for purposes of the serious charges he was facing?

31. The appellate court for the fact that he had spent some time in custody did not see the need to order a retrial otherwise he cannot claim innocence or at all.

32. Consequently, this court for the reasons given above does not find that his constitutional rights and or any rights were infringed or at all. The petition is hereby dismissed with no order as to costs.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 9TH DAY OF JUNE 2022. H K CHEMITEI.JUDGE