[2011] KEHC 3983 (KLR)
The court found that the sentence imposed on the subject was unlawful because the trial court failed to properly ascertain and consider the subject's age, despite clear indications that he was a minor. The judge relied on the probation officer's report, school records, and personal observation, which all supported...
Source-derived case information.
- Citation
- [2011] KEHC 3983 (KLR)
- Parties
- Applicant: P.K; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 210 of 2010
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- sentence set aside; subject released
- Judges
- SP Ouko
- Legal Topics
- Sentencing of Minors, Age Assessment, Unlawful Detention
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
P.K
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the sentence imposed on the subject, a minor, was lawful under the circumstances.
- 2 Whether the trial court properly inquired into and considered the age of the accused before sentencing.
Ratio Decidendi
The court found that the sentence imposed on the subject was unlawful because the trial court failed to properly ascertain and consider the subject's age, despite clear indications that he was a minor. The judge relied on the probation officer's report, school records, and personal observation, which all supported the conclusion that the subject was under 18 at the time of the offence. The court reiterated the obligation of trial courts to inquire into the age of accused persons who appear to be children and held that the period already served was unlawful. Consequently, the subject was ordered to be released and allowed to return to school.
Court Disposition
sentence set aside; subject released
Orders
- The sentence imposed on the subject is set aside.
- The subject is set free and allowed to return to school.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL REVISION CASE NO.210 OF 2010
P.K…………………………………………………….APPLICANT
VERSUS
REPUBLIC……………………......………………..RESPONDENT
RULING
I have been invited by counsel, Mr. L. R. Kipsang to exercise my jurisdiction under sections 362 and 364of the Criminal Procedure Code to examine the record of the court below in Molo P.M. Criminal Case No.2760/2010 and to satisfy myself as to the correctness or legality of the sentence imposed on the subject.
The subject, P.K and another were upon conviction on their own plea of guilty sentenced to a fine of Kshs.50,000/= or six months imprisonment in default for the offence of failing to comply with prohibited activities in the forest contrary to Section 52(1) (2) of the Forest Act.Counsel has stated that in view of the age of the subject which he gave as 16 years, the above sentence was unlawful.
On 20th December, 2010, the court (Wendo, J) directed that the subject’s age be assessed and a probation officer’s report be filed. Both were duly done. According to the probation officer’s report the subject was born on 14th March, 1994, placing his age at 16 years at the time of the offence.
The doctor’s assessment on the other hand is that the subject is approximately 19 years. The subject has personally appeared before me and even though I am not an expert in age assessment, he appeared younger than 19 years. This position is buttressed by confirmation from K Secondary School that the subject was in form ll at the time of his arrest.
It is settled learning that an expert’s opinion, like the opinion of the doctor herein is but only an opinion which the court may or may not take into account in arriving at a conclusion depending on the circumstances of each case. The period the subject has served was unlawful and I reiterate what I have said in previous similar cases that it is incumbent upon trial courts to inquire into the age of persons charged before them who appear to them to be children.
The subject is, for these reasons set free to go back to school, having wasted nearly two months.
Dated, Delivered and Signed at Nakuru this 14th day of February, 2011.
W. OUKO
JUDGE