[2006] KEHC 3123 (KLR)
The court found that the subordinate court erred by failing to ascertain the age of the appellant before sentencing, resulting in the imposition of a custodial sentence with hard labour on a minor, contrary to the Children Act, 2001. Upon review, the High Court exercised its appellate jurisdiction to vary the...
Source-derived case information.
- Citation
- [2006] KEHC 3123 (KLR)
- Parties
- Appellant: Peter Kipngeno Cheruiyot; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 103 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; custodial sentence set aside; probation and community service imposed
- Judges
- FI Koome
- Legal Topics
- Arson, Sentencing of Children, Plea of Guilty, Children Act Application
- 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
Peter Kipngeno Cheruiyot
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the subordinate court erred by failing to ascertain the age of the accused before sentencing.
- 2 Whether the sentencing of a minor to a custodial sentence with hard labour was contrary to the Children Act, 2001.
- 3 Whether the sentence should be varied to comply with the law regarding child offenders.
Ratio Decidendi
The court found that the subordinate court erred by failing to ascertain the age of the appellant before sentencing, resulting in the imposition of a custodial sentence with hard labour on a minor, contrary to the Children Act, 2001. Upon review, the High Court exercised its appellate jurisdiction to vary the sentence, replacing it with a non-custodial sentence of probation and community service, as the error only occurred at the sentencing stage and not during conviction. The decision was made in the interest of justice and in compliance with statutory requirements for child offenders.
Court Disposition
sentence varied; custodial sentence set aside; probation and community service imposed
Orders
- The appellant is sentenced to serve a probation period of one year.
- The first six months of probation shall include community service.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Criminal Appeal 103 of 2005
Peter Kipngeno Cheruiyot ….......................................................................………APPLICANT
-VS-
REPUBLIC ……………………............................................................………………. RESPONDENT
JUDGMENT
The Appellant was convicted on his own plea of guilty and sentenced to 4 years imprisonment with hard labour. He was charged with the offence of Arson contrary to section 332(a) of the penal code.
The facts of the case is that on the 19th September, 2005 at namely [particulars withheld pursuant to section 76(5) of the Children Act, 2001], the accused willfully set fire to a building namely a Boys Dormitory at Ksh.800,000/= the property of namely [particulars withheld pursuant to section 76(5) of the Children Act, 2001].
When the Application came up for hearing the Hon. Judge Kimaru requested the age of the subject to be assessed by a Doctor and a probation report by the District probation officer be prepared.
The subject was found to be 17 years old and a probation report was duly filed by the probation officer.
It would appear that the subordinate court did not ascertain the age of the subject during the time he was convicted and sentenced therefore he was not subjected to the trial according to the provisions of Children’s Act 2001. He was sentenced to a custodial sentence of 4 years with hard labour before his age was ascertained.
I have re-evaluated the facts in this case and considering the Subject was convicted on his own plea of guilty, I have also taken into consideration the powers vested in this court in its appellate jurisdiction to vary or quash a sentence. It will be in the interest of justice according to the facts of this case to vary the sentence and replace it with a non custodial sentence as the error only occurred in sentencing.
Accordingly I sentence the subject to serve a probation period of one (1) year and the first six months the subject shall do community service.
It is so ordered.
Dated at Kericho this 1st day of February, 2006
MARTHA KOOME
JUDGE