[2013] KEHC 1841 (KLR)
The court found that the record did not reflect any age assessment of the appellant at the time the plea was taken, despite indications that he may have been a child. The state conceded that such an enquiry was necessary. Given the absence of an age assessment and the principle that an accused is entitled to the...
Source-derived case information.
- Citation
- [2013] KEHC 1841 (KLR)
- Parties
- Appellant: Martin Muriithi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 121 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; appellant set free unless otherwise lawfully held
- Legal Topics
- Plea of Guilty, Age Assessment, Conviction Quashed, Unnatural Offence, Benefit of Doubt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Muriithi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was a child at the time of the offence and if an age assessment should have been conducted before plea was taken.
- 2 Whether the conviction and sentence should stand in light of the failure to ascertain the appellant's age.
Ratio Decidendi
The court found that the record did not reflect any age assessment of the appellant at the time the plea was taken, despite indications that he may have been a child. The state conceded that such an enquiry was necessary. Given the absence of an age assessment and the principle that an accused is entitled to the benefit of doubt in such circumstances, the court held that the conviction could not stand. The appeal was allowed, the conviction quashed, and the appellant ordered to be set free unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; appellant set free unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NUMBER 121 OF 2012
MARTIN MURIITHI..................................….............……...…………..APPELLANT
VERSUS
REPUBLIC………………………………............……………………..RESPONDENT
(Being an appeal from the original conviction and sentence in Runyenjes 404 of 2008 by D.O. Onyango S.R.M on 16th June, 2008)
JUDGMENT
The appellant was convicted of the offence of unnatural act contrary to section 162(2) of the Penal Code on his own plea of guilty on 16th June, 2008. He was accordingly sentenced to serve 12 years imprisonment.
When the appeal came up for hearing, it was apparent from assessment and observing the appellant that he may have been a child at the time the offence was committed. I directed that he undergoes an age assessment at the Embu General Hospital.
According to the report by Dr Ndungu, a dentist, the appellant, is over 18 years. This report is unhelpful.
Learned counsel for the state, concedes that an enquiry ought to have been conducted at the time the plea was taken to ascertain his age. In the circumstances, she submits that he is entitled to the benefit of doubt and the appeal should be allowed.
I think the suggested course is proper. The appellant appears to have been a child and the record does not reflect that an age assessment was carried out at the material time. He has been in prison for a period of six years.
The order that commands itself to the court is that the appeal is allowed and the conviction quashed. He is set free unless otherwise lawfully held.
D.A.S MAJANJA
JUDGE
16. 10. 13
Court:
Judgment read and delivered in open court this 16th day of October, 2013
D.A.S MAJANJA
JUDGE
16. 10. 2013
In the presence of
M/S Aluda for state
Appellant
Njue – Court clerk.