[2010] KEHC 1739 (KLR)
The court found that the failure to determine the appellant's age prior to taking the plea rendered the plea equivocal. The age of the accused is a material factor that affects not only the mode of trial but also the nature of the sentence and the place of confinement. Since the trial court did not obtain an age...
Source-derived case information.
- Citation
- [2010] KEHC 1739 (KLR)
- Parties
- Appellant: Noel Kori; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 45 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; retrial ordered
- Judges
- JV Juma
- Legal Topics
- Arson, Plea Taking, Age Assessment, Juvenile Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Noel Kori
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was unequivocal given the uncertainty regarding the appellant's age.
- 2 Whether the appellant should have been tried as a child or an adult based on proper age assessment.
- 3 Whether the conviction and sentence were valid in the absence of an age assessment report.
Ratio Decidendi
The court found that the failure to determine the appellant's age prior to taking the plea rendered the plea equivocal. The age of the accused is a material factor that affects not only the mode of trial but also the nature of the sentence and the place of confinement. Since the trial court did not obtain an age assessment report despite noting the appellant appeared young, the conviction and sentence could not stand. The interests of justice required that the matter be remitted for retrial with a proper age assessment conducted before plea is taken.
Court Disposition
appeal allowed; conviction and sentence set aside; retrial ordered
Orders
- The conviction and sentence are set aside.
- The appellant to be taken back before Wundanyi Law Courts for retrial.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 45 of 2008
NOEL KORI....................... ……………………….. APPELLANT
VERSUS
REPUBLIC ……………….…………..………… RESPONDENT
***********************
JUDGEMENT
Before me is the Appeal of NOEL KORI(hereinafter referred to as the Appellant) against his conviction and sentence for the offence ofARSON CONTRARY TO SECTION 332 (A) OF THE PENAL CODE.
The Appellant had been arraigned before the lower court on 7/02/2008 and had the charges read out to him.He pleaded guilty.As required by Section 207 of the Criminal Procedure Code the facts were thereafter read out and the accused maintained his plea of guilty.The learned trial magistrate proceeded to convict the Appellant and after hearing his mitigation sentenced him to serve seven (7) years imprisonment.It is against this conviction and sentence that the Appellant now appeals.
In conceding this appeal, the learned state counsel MR. ONSERIOraised the issue of the age of the Appellants.In his written submissions the Appellant claims thathe was 15 years old when convicted yet when questioned by this court he claims to have been born in 1982 which would make him 28 years old today.However I note that the learned trial magistrate did order an age assessment to be undertaken but no report was ever availed to court.Further before imposing sentence, the trial court did note that the Appellant appeared young.I do agree with Mr. Onserio that the age of the Appellant was a crucialfactor which ought to have been determined prior to his plea being taken.This is because his age would determined whether the Appellant would be tried as a child or an adult, and would also have a bearing on the place of confinement upon conviction. For these reason I cannot find that the plea was unequivocal.
Mr. Onserio submitted that the state is not seeking a retrial.However in view of the serious nature of the charge and the strength of evidence as indicated by the facts as read out, it is in my view that justice would bebest served by having this matter retried.The lower court should as a precaution ensure that an age assessment report is availed prior to plea.
This appeal succeeds the Appellant to be taken back before Wundanyi Law Courts for re-trial.Mention on 1/07/2010.
Dated and Delivered atMombasathis 14th day of June 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Mr. Onserio for state
Appellant in person
M. ODERO
JUDGE
14/06/2010