[2014] KEHC 468 (KLR)
The court found that the applicant was 17 years old at the time of the offence, making him a child under the law. The Children Act prohibits treating children as convicted and sentenced in the same manner as adults, and provides alternative methods for dealing with child offenders. Both the complainant and the...
Source-derived case information.
- Citation
- [2014] KEHC 468 (KLR)
- Parties
- Applicant: M D T; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 24 of 2014
- Procedural Posture
- Criminal Revision / Orders on Revision
- Outcome
- sentence reviewed and applicant absolutely discharged
- Judges
- SJ Chitembwe
- Legal Topics
- Defilement of Minor, Child Offenders, Sentencing of Children, Consent in Sexual Offences
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
M D T
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Orders on Revision
Legal Issues
- 1 Whether the applicant was a child at the time of the offence and thus entitled to protections under the Children Act.
- 2 Whether the sentence of twenty years imprisonment was lawful given the applicant's age at the time of the offence.
- 3 Whether punishing only one minor in a consensual relationship between two minors is fair and lawful.
Ratio Decidendi
The court found that the applicant was 17 years old at the time of the offence, making him a child under the law. The Children Act prohibits treating children as convicted and sentenced in the same manner as adults, and provides alternative methods for dealing with child offenders. Both the complainant and the applicant were minors, and neither could legally consent to sexual activity. The court held that punishing only one child in such circumstances would be unfair and contrary to the principles of the Children Act. Consequently, the sentence of twenty years imprisonment was unlawful and was set aside. The applicant was absolutely discharged under Section 35 of the Penal Code and...
Court Disposition
sentence reviewed and applicant absolutely discharged
Orders
- The sentence of twenty years imprisonment is set aside as unlawful.
- The applicant is absolutely discharged under Section 35 of the Penal Code.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CRIMINAL DIVISION
CRIMINAL REVISION NUMBER 24 OF 2014
(From the original conviction and sentence in criminal Sexual Offences
Case Number 41 of 2011 of Malindi)
M D T ….....................................................................................................APPLICANT
VERSUS
REPUBLIC ….........................................................................................RESPONDENT
ORDERS ON REVISION
I have gone through the record of the trial court. The accused was charged with the offence of Defilement. The Complainant was aged 15 years old. The Complainant informed he court that she got married to the accused. They lived with the accused for one month until when the Children's Officer arrested them.
The accused has applied for revision of the sentence. His main ground is that he was 17 years old when the offence was committed. The record of the trial court shows that once the court passed judgment, an age assessment report was called for. The report dated 12th August, 2013 indicate that the Applicant was about 19 years old. The offence was committed in June, 2011. The accused testified before the court and produced his birth certificate which shows that he was born on 27th February, 1994.
Given the information herein, it is established that the accused was 17 years old when the offence was committed. Section 189 of the Children of the Children Act No. 8 of 2001 prohibits the use of the words “conviction and sentence” in relation to children. Section 191 of the same Act provides for methods of dealing with child offenders.
From the record herein, I do find that there is no need to send the accused to a Borstal Institution. The Complainant's position is that the two were married. Since both of them were minors, none could give consent to have sex as under the Sexual Offences Act, a child cannot give consent to have sex. The two parties were both children. I do find that punishing one of the children would be unfair. Further, the evidence of the Complainant is quite clear. The two used to communicate on phone and definitely the parents knew about it.
In the end, the sentence of twenty (20) years imprisonment is hereby reviewed as the same is unlawful. I will discharge the accused under Section 35 of the Penal Code. The discharge is absolute. The accused shall be set at liberty unless otherwise lawfully held.
Delivered and dated at Malindi this 19th day of December, 2014.
Said J. Chitembwe
JUDGE