[2013] KEHC 4133 (KLR)
The court found that the accused, Dalmas Tuwout, was fourteen years old at the time of plea and sentencing. The sentences of 18 months and 1 year imprisonment imposed on him for Counts 3 and 4 were illegal, as the law prohibits sentencing minors to imprisonment except in exceptional circumstances and only after...
Source-derived case information.
- Citation
- [2013] KEHC 4133 (KLR)
- Parties
- Respondent: Republic; Applicant: Dalmas Tuwout
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 2 of 2013
- Procedural Posture
- Criminal Revision / Ruling on Revision of Sentence and Conviction
- Outcome
- Conviction and sentence set aside; proceedings expunged; accused to take plea afresh as a minor.
- Judges
- AW Macharia
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Illegal Sentence, Quashing of Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Dalmas Tuwout
Applicant
Procedural Posture
Criminal Revision / Ruling on Revision of Sentence and Conviction
Legal Issues
- 1 Whether the sentence imposed on a minor was lawful under Kenyan law.
- 2 Whether the conviction and proceedings against a minor should be set aside when the accused is found to be underage.
Ratio Decidendi
The court found that the accused, Dalmas Tuwout, was fourteen years old at the time of plea and sentencing. The sentences of 18 months and 1 year imprisonment imposed on him for Counts 3 and 4 were illegal, as the law prohibits sentencing minors to imprisonment except in exceptional circumstances and only after considering alternatives. The conviction and all proceedings against the minor were quashed and expunged from the record. The court ordered that the accused take plea afresh in accordance with the law governing children, and pending that, he should be remanded in a Children Remand Home. The decision was guided by the need to protect the rights of minors in conflict with the law and...
Court Disposition
Conviction and sentence set aside; proceedings expunged; accused to take plea afresh as a minor.
Orders
- The sentences imposed on Dalmas Tuwout for Counts 3 and 4 are set aside.
- The convictions for Counts 3 and 4 are quashed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
Criminal Revision 2 of 2013 [if gte mso 9]><xml>
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REPUBLIC …................................................................................. PROSECUTOR
VERSUS
DALMAS TUWOUT …....................….................................................. ACCUSED
RULING
The file was referred for revision by the trial Magistrate Kabarnet in Criminal Case No. 698 of 2012.
Before the Magistrate, the accused (subject) was charged with four counts as follows:
Count I and Count II:
House breaking contrary to Section 304 (1) and stealing contrary to Section 279 (b) of the Penal Code.
Count III:
Escape from lawful custody contrary to Section 123 of the Penal Code.
Count IV:
Stealing contrary to Section 275 of the Penal Code.
Plea was taken on 7th December, 2012 and the accused (subject) pleaded guilty to Counts 3 and 4. On 11th December, 2012 he was taken to court for hearing of evidence of Counts 1 and 2. In Counts 3 and 4, he was sentenced to serve 18 months and one (1) year imprisonment respectively.
During the hearing, court realized the accused (subject) was under age, and a subsequent age assessment revealed that he was fourteen (14) years old.
In effect, the sentence handed to the subject is illegal. The same (with respect to Counts 3 and 4) is set aside. The conviction is equally quashed. Evidence cannot be heard piece meal in respect of the two pending counts. As such all proceedings in respect of this trial against the subject are expunged (set aside) from record.
The subject shall accordingly take plea afresh and pending the taking of the plea shall be remanded in a Children Remand Home.
This order shall be served both on the trial court and the investigating officer for necessary action.
DATEDand DELIVERED at ELDORET this 28th day of March, 2013.
G. W. NGENYE – MACHARIA
JUDGE
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