[2024] KEHC 9425 (KLR)
The trial court erred in imposing a custodial sentence of 20 years on the applicant, who was a minor at the time of the offence. Section 238 of the Children Act 2022 prohibits custodial sentences for minors except in exceptional circumstances, which were not present in this case. The applicant was herself a victim...
Source-derived case information.
- Citation
- [2024] KEHC 9425 (KLR)
- Parties
- Applicant: Sarah Nyanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Revision E116 of 2004
- Procedural Posture
- Miscellaneous Criminal Revision / Ruling on Revision of Sentence
- Outcome
- custodial sentence set aside; social inquiry report ordered; interim placement in remand home
- Judges
- MS Shariff
- Legal Topics
- Sentencing of Minors, Custodial Sentences, Juvenile Justice, Revisionary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Sarah Nyanga
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Revision / Ruling on Revision of Sentence
Legal Issues
- 1 Whether the trial court erred in sentencing a minor to a custodial sentence of 20 years.
- 2 Whether the provisions of the Children Act 2022 prohibit custodial sentences for minors in the circumstances of this case.
- 3 Whether the court should exercise its revisionary jurisdiction to set aside the sentence imposed on the minor.
Ratio Decidendi
The trial court erred in imposing a custodial sentence of 20 years on the applicant, who was a minor at the time of the offence. Section 238 of the Children Act 2022 prohibits custodial sentences for minors except in exceptional circumstances, which were not present in this case. The applicant was herself a victim of defilement and incapable of consenting to sexual intercourse. The High Court, exercising its revisionary jurisdiction under Article 165(6) and (7) of the Constitution, set aside the custodial sentence and directed the preparation of a social inquiry report to inform appropriate sentencing in accordance with the law protecting minors.
Court Disposition
custodial sentence set aside; social inquiry report ordered; interim placement in remand home
Orders
- The sentence of the 1st accused person is set aside.
- A probation officer Kisumu to file a social inquiry report in respect of the 1st accused within 7 days.
Full Case Text
Judgment text and source record
21 paragraphs
Nyanga v Republic (Miscellaneous Criminal Revision E116 of 2004) [2024] KEHC 9425 (KLR) (23 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9425 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Revision E116 of 2004
MS Shariff, J
July 23, 2024
Between
Sarah Nyanga
Applicant
and
Republic
Respondent
Ruling
1. I have perused the trial file namely Nyando SPM Criminal Case No. 456 of 2024: Republic –versus- Sarah Nyanga & Moses Matete and do note that indeed the copy of certificate of birth No. A1855154 dated 4. 4.2019 reveals that the 1st Accused person was born on 15. 2.2007 wherefore she is a minor aged 17 years and 5 months. The trial court thus erred in meting a custodial sentence of 20 years against the accused.
2. In light of the said error and regard being heard of the provisions of Sections 238 of the Children Act 2022 the 1st accused person ought not to have been given a custodial sentence. This court takes cognizance of the fact that the 1st accused committed a heinous offence but it should not escape the mind of the court that the 1st accused was she herself being defiled by the 2nd accused given that she was herself a minor and incapable of engaging in consensual sexual intercourse. This was one minor whom the 2nd accused had assigned the role of parenting another minor.
3. In exercise of the revisionary jurisdiction as clothed in this court by the provisions of article 165 (6) and (7) of the Constitution of Kenya 2010 I do hereby set aside the sentence of the 1st accused person.
4. I direct that a probation officer Kisumu do file a social inquiry report in respect of the 1st accused within 7 days from the date hereof.
5. In the interim I order that the 1st accused be placed in Kisumu Children’s Remand Home as she awaits sentencing.
6. Mention on 30. 7.2024.
DATED, SIGNED AND DELIVERED THIS 23RDDAY OF JULY, 2024. M. S. SHARIFFJUDGE