[2012] KEHC 4259 (KLR)
The court found that although the charge of stealing by servant was proved, the appellant was a minor at the time of trial and should not have been sentenced to imprisonment. The trial court failed to consider the appellant's age, and the sentence imposed was therefore unlawful. The appropriate remedy was to release...
Source-derived case information.
- Citation
- [2012] KEHC 4259 (KLR)
- Parties
- Appellant: Lydia Kerubo Aminga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 192 of 2011
- Procedural Posture
- Criminal Appeal / Order on Revision
- Outcome
- sentence revised; appellant released from custody to serve remainder on probation
- Judges
- CC Kipkorir
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Stealing by Servant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Kerubo Aminga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Order on Revision
Legal Issues
- 1 Whether the appellant was properly tried and sentenced as an adult despite being a minor at the time of trial.
- 2 Whether the sentence of imprisonment was lawful for a minor convicted of stealing by servant.
Ratio Decidendi
The court found that although the charge of stealing by servant was proved, the appellant was a minor at the time of trial and should not have been sentenced to imprisonment. The trial court failed to consider the appellant's age, and the sentence imposed was therefore unlawful. The appropriate remedy was to release the appellant from custody and order that she serve the remainder of her sentence on probation, in accordance with the law governing juvenile offenders.
Court Disposition
sentence revised; appellant released from custody to serve remainder on probation
Orders
- The accused is released from custody forthwith.
- The accused shall serve the remaining part of the sentence, i.e. 26 months, on probation.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISII
Criminal Appeal 192 of 2011
LYDIA KERUBO AMINGA ….……….…………….. APPELLANT
-VERSUS-
REPUBLIC ………..……………..…………..…… RESPONDENT
ORDER ON REVISION
Lydia Kerubo Aminga was charged before the Senior Resident Magistrate’s Court in Keroka on 20th June, 2011 with the offence of stealing by servant contrary to section 281 of the Penal Code. She was convicted and sentenced to 30 months imprisonment on 15th September, 2011. She has, vide her petition filed on 21st September, 2011, appealed against both conviction and sentence. While forwarding the lower court file for purposes of the appeal, the Senior Resident Magistrate notified this court that it had come to his attention that the appellant was tried as an adult although at the time of the trial she was a minor. He has indicated that the age of the accused was not brought to the attention of the trial court and has attached a birth certificate which shows that the appellant was born on 9th June, 1995 meaning that she was 16 at the time of trial.
I have perused the record. Nowhere in the record throughout the trial was the issue of age raised. Further, in her petition of appeal, the appellant states on ground 4 that she is 18 years old. It is also curious that the birth certificate does not form part of the trial court record. Save for the contention on age, the charge appears to have been proved. However, the accused being a minor ought not to have been sentenced to imprisonment. A probationary sentence would have been more appropriate.
In the circumstances, I order that the accused be released from custody forthwith to serve the remaining part of the sentence i.e 26 months on probation.
Revision dated signedand delivered at Kisiithis 23rd day of January, 2012.
R. LAGAT KORIR
JUDGE