[2016] KEHC 3722 (KLR)
The court found that the applicant was a minor at the time of conviction and sentencing, as confirmed by an age assessment report. The trial magistrate erred by convicting and sentencing the applicant as an adult, despite being aware of his minor status. The Children Act requires that minors be treated differently...
Source-derived case information.
- Citation
- [2016] KEHC 3722 (KLR)
- Parties
- Applicant: Nune Athar Hassan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 6 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
- Outcome
- conviction quashed and sentence set aside; applicant discharged as a minor
- Judges
- LN Mutende
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Unlawful Presence, Children Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nune Athar Hassan
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
Legal Issues
- 1 Whether the conviction and sentence of a minor for being unlawfully present in Kenya was lawful.
- 2 Whether the trial court erred by failing to verify the applicant's age before sentencing.
- 3 Whether the Children Act protections were properly applied to the applicant.
Ratio Decidendi
The court found that the applicant was a minor at the time of conviction and sentencing, as confirmed by an age assessment report. The trial magistrate erred by convicting and sentencing the applicant as an adult, despite being aware of his minor status. The Children Act requires that minors be treated differently from adults in criminal proceedings, and the protections under the Act were not observed. The conviction and sentence were therefore quashed, and the applicant was discharged under Section 35(1) of the Penal Code. The court further directed that the applicant be handed over to the Refugee Camp Officer for vetting and further action, recognizing his status as a child in conflict...
Court Disposition
conviction quashed and sentence set aside; applicant discharged as a minor
Orders
- The conviction is quashed and the sentence set aside.
- The applicant is discharged under Section 35(1) of the Penal Code.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL REVISION CASE NO. 6 OF 2016
NUNE ATHAR HASSAN ..........................................APPLICANT
VERSUS
REPUBLIC ……………….......…...........……… RESPONDENT
R U L I N G
1. By a letter dated 22nd June, 2016, C. K. Nzili & Co. Advocatessought review of a court order made on 7th June, 2016by G. W. Kirugumi, Resident Magistrate, Mwingi,in respect of an Accused person, Nune Athar Hassan(Applicant).
2. The Applicant was charged with the offence of Being Unlawfully Present in Kenyacontrary to Section 53(1)(j)(2)of the Kenya Citizenship and Immigration Act Cap 172 Laws of Kenya.
3. At the outset he denied this charge. On the 7th June, 2016he changed plea and pleaded guilty to the charge. He was convicted and sentenced to pay a fine of Kshs. 300,000/=or serve Six (6) months imprisonment.
4. The Applicant seeks review on the grounds that:
He is a first offender.
He is underage.
The court did not verify the age before sentencing.
The charges are illegal.
5. When the Applicant was arraigned in court he was described on the charge sheet as a male juvenile. The record shows that the file was placed before the same Learned Magistrate on the 13th June, 2016and on her own motion she ordered the Applicant to be escorted to Mwingi District Hospitalfor age assessment. Thereafter she recorded a confirmation that indeed the Applicant was a minor but indicated that she was functus officio.
6. The age assessment report by Dr. Halima Mohamed Sabitof Mwingi District Hospitalwhich forms part of the record that I am examining indicate that the Applicant is 17 years old.
7. The Children Act describes a child as – any human being under the age of eighteen years.The Applicant was a child in conflict with the law.
8. It was erroneous on the part of the Learned Trial Magistrate to convict and sentence him. In the premises, I do quash the conviction and set aside the sentence imposed.
9. Pursuant to the provisions of Section 73(d)(vi) and 189of the Children Act, 2001I hereby substitute the conviction and sentence with a finding of guilty. Accordingly, he is discharged under Section 35(1)of the Penal Code.
10. The child herein was in company of refugees who were charged with the offence of residing outside the designated area without authority. In the premises, I direct that the Applicant shall be handed over to the Refugee Camp Officer at Hagadera Refugee Camp for vetting and further action.
11. It is so ordered.
Dated, Signedand Deliveredat Kituithis 28thday of July, 2016.
L. N. MUTENDE
JUDGE