[2015] KEHC 4161 (KLR)

[2015] KEHC 4161 (KLR)

The High Court held that Section 14(3) of the Penal Code creates an irrebuttable presumption that a male child under the age of twelve years is incapable of having carnal knowledge. Therefore, the trial court was correct in dismissing the charges against the respondent, who was 11 years old at the time of the...

Source-derived case information.

Citation
[2015] KEHC 4161 (KLR)
Parties
Applicant: Republic; Respondent: E M
Court
High Court
Court Station
High Court at Embu
Jurisdiction
Kenya
Judgment Date
24 June 2015
Case Number
Criminal Revision 14 of 2015
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Magistrate's Orders
Outcome
application for revision dismissed
Judges
FN Muchemi
Legal Topics
Criminal Responsibility, Tender Age Presumption, Sexual Offences, Revision Jurisdiction
Source Language
english
Criminal Law Civil Procedure Criminal Responsibility Tender Age Presumption Sexual Offences Revision Jurisdiction

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Summary, issues, holding and outcome

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Parties

Republic

Applicant

E M

Respondent

Procedural Posture

Criminal Revision / Ruling on Application for Revision of Magistrate's Orders

Legal Issues

  1. 1 Whether the trial court erred in dismissing charges against a male child under 12 years for an unnatural offence based on Section 14(3) of the Penal Code.
  2. 2 Whether the trial court was obligated to assess the respondent's capacity and knowledge for criminal responsibility under Section 14(2) of the Penal Code.
  3. 3 Whether the use of Section 89(1) of the Criminal Procedure Code to dismiss the charges was proper.

Ratio Decidendi

The High Court held that Section 14(3) of the Penal Code creates an irrebuttable presumption that a male child under the age of twelve years is incapable of having carnal knowledge. Therefore, the trial court was correct in dismissing the charges against the respondent, who was 11 years old at the time of the alleged offence. The court clarified that the obligation to assess the capacity and knowledge of the minor under Section 14(2) does not apply to sexual offences covered by Section 14(3). Although the trial magistrate cited the wrong procedural section (Section 89(1) of the Criminal Procedure Code) in dismissing the charges, this error was not substantive and did not affect the...

Court Disposition

application for revision dismissed

Orders

  • The application for revision is dismissed.
  • The ruling of the magistrate acquitting the respondent stands.