[2019] KEHC 4498 (KLR)
The court found that Section 25(2) of the Penal Code, under which the 5th appellant was sentenced, is unconstitutional. In light of this, and considering the submissions by the prosecution that the time already served by the 5th appellant is adequate punishment, the court determined that it would be just to sentence...
Source-derived case information.
- Citation
- [2019] KEHC 4498 (KLR)
- Parties
- Appellant: Micheal Musungu; Appellant: Alex Navulu; Appellant: Joseph Indambo; Appellant: Alfred Juma; Appellant: IA; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 33 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Sentencing and Release of Minor Appellant
- Outcome
- 5th appellant resentenced to time served and ordered released; judgment for 1st to 4th appellants reserved.
- Judges
- DO Ogembo
- Legal Topics
- Sentencing of Minors, Constitutionality of Penal Code Provisions, Release of Prisoners, Juvenile Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Micheal Musungu
Appellant
Alex Navulu
Appellant
Joseph Indambo
Appellant
Alfred Juma
Appellant
IA
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentencing and Release of Minor Appellant
Legal Issues
- 1 Whether Section 25(2) of the Penal Code is constitutional as applied to minors.
- 2 What is the appropriate sentence for a minor previously sentenced under Section 25(2) of the Penal Code after its declaration of unconstitutionality.
- 3 Whether the time already served by the 5th appellant is adequate punishment.
Ratio Decidendi
The court found that Section 25(2) of the Penal Code, under which the 5th appellant was sentenced, is unconstitutional. In light of this, and considering the submissions by the prosecution that the time already served by the 5th appellant is adequate punishment, the court determined that it would be just to sentence the 5th appellant to a period equivalent to the time already served. Consequently, the 5th appellant is to be released forthwith unless otherwise lawfully held. This approach aligns with constitutional protections for minors and the principle that no person should be detained under an unconstitutional law.
Court Disposition
5th appellant resentenced to time served and ordered released; judgment for 1st to 4th appellants reserved.
Orders
- Judgment for 1st to 4th appellants to be delivered on 25th October, 2019.
- 5th appellant IA is sentenced to a period equivalent to time already served.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CORAM: E. K. O. OGOLA, J.
CRIMINAL APPEAL NO. 33 OF 2018
MICHEAL MUSUNGU ............................................ 1ST APPELLANT
ALEX NAVULU........................................................... 2ND APPELLANT
JOSEPH INDAMBO .................................................. 3RD APPELLANT
ALFRED JUMA............................................................. 4TH APPELLANT
IA .................................................................................. 5TH APPELLANT
VERSUS
REPUBLIC .......................................................................... RESPONDENT
RULING
1. Judgment will be delivered on 25th October, 2019 in the cases of the 1st to 4th appellants.
2. As for the 5th appellant IA, he was a minor aged 16 at the time of the offence and was jailed at the pleasure of the President under Section 25 (2) of the Penal Code. That Section has since been declared unconstitutional, and courts have proceeded to sentence all minors sentenced under that Section. In view of the submissions by Mr. Ongige the Prosecutor herein that the time already spent by the 5th appellant be deemed adequate punishment, this court agrees and herewith sentences the 5th appellant to a period equivalent to the term already served, with the result that the 5th appellant IA is herewith forthwith released from Prison unless validly held.
Delivered, dated and signed in open court at Kakamega this 10th day of September, 2019.
E. K. O. OGOLA
JUDGE
In the presence of:
State Counsel – Mr. Ongige
Appellant -
Court Assistant – Mr. Erick