[2011] KEHC 1902 (KLR)
The court found that the sentence of 18 months imprisonment was harsh and unlawful given the appellant's apparent age as a youthful offender, possibly under 18 years, and the lack of certified adverse criminal record from the prosecution. The Probation Officer's Report, which was handwritten and recommended a...
Source-derived case information.
- Citation
- [2011] KEHC 1902 (KLR)
- Parties
- Appellant: G.K.J.; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 55 of 2011
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Sentence of 18 months imprisonment set aside; sentence to be determined after further submissions.
- Judges
- AM Cockar
- Legal Topics
- Juvenile Offenders, Sentencing Principles, Stealing Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G.K.J.
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 18 months imprisonment imposed on a youthful offender was lawful and appropriate.
- 2 Whether the appellant's age was properly considered in sentencing.
- 3 Whether the Probation Officer's Report was properly relied upon regarding the appellant's criminal record.
Ratio Decidendi
The court found that the sentence of 18 months imprisonment was harsh and unlawful given the appellant's apparent age as a youthful offender, possibly under 18 years, and the lack of certified adverse criminal record from the prosecution. The Probation Officer's Report, which was handwritten and recommended a community service order, could not substitute for official criminal records. The court emphasized that the Children Act defines a child as anyone under 18 years and that sentencing must reflect this status. The appellant's guilty plea, first offender status, and the low value of the stolen property further militated against a custodial sentence. Consequently, the sentence was set...
Court Disposition
Sentence of 18 months imprisonment set aside; sentence to be determined after further submissions.
Orders
- The sentence of 18 months imprisonment is set aside.
- The court will determine the appropriate sentence after hearing counsel for the appellant and the Probation Officer.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRA NO. 55 OF 2011
LESIIT, J
REPUBLIC……………………………………..………………RESPONDENT
VERSUS
G.K.J.…….……........................................................…………..APPELLANT
(From the original conviction and sentence in Maua SPM’S No.903 of 2011-J.M.KINGORI)
JUDGEMENT
The appellant G.K.J. was charged with one count of stealing contrary to Section 275 of the Penal Code. He pleaded guilty to stealing miraa with 1000/=. The court called for a pre-sentence Probation Officers Report before sentencing the appellant to 18 months imprisonment.
When the appellant came for his appeal, this court noted that he was youthful and of an appellant age way below 18 years. When asked, he said he was 18 years old. On that ground the learned state counsel, Mr.Kimathi, conceded the appeal and stated that the sentence was illegal by virtue of the appellant’s age. He however asked court to note that the Probation Officer’s Report was to the effect the report was unfavourable to the appellant as he was found to be a habitual thief.
The counsel for the appellant left it to court in view of the sentiments by the state counsel.
I will start with the Probation Officer’s Report. The one on the file, curiously in handwritten form, is favourable to the appellant and recommends a community service order sentence. I will confirm the Report from the officer when he comes to court.
From the appeal itself the appellant pleaded guilty. The total value of the “miraa” stolen, as recovered from him, was assessed at Kshs. 1000/=.
The appellant is a youthful offender. The prosecution had no adverse records on him. As I have stated in earlier occasions, the previous criminal record of an accused person can only be produced by the prosecution. They are the ones charged with the duty of keeping past criminal convictions of an accused person. The docket to match finger prints and keep the data is with the Office of the President under which the Police force falls.
The Probation Department have no mandate to comment on the criminal record of an accused person. All they can indicate is the known reputation of the offender within the domain of persons they have intervened, or past experience with the offender. The source of such information must also be disclosed.
A trial court should not confuse a Probation Officer’s comment on an offender’s character, reputation and antecedents to be a previous criminal record of the accused. Such a criminal record should be produced by the prosecution under signature and certificate from the central Records Bureau held by the CID or other Police Department.
Turning to the matter before court S2 of the children Act, the interpretation Section of the act defines “age” as;-
“Where actual age is not known means apparent age”
Under the same section;
“Child means any human being under the age of eighteen years”
The appellant’s apparent age is 17 years of age. I note that the probation report gives his age as 20 years. Whether he is 17 years or 20 years it does not make much difference in the court’s eye. He is a youthful offender. He pleaded guilty to the charge thus saving courts time. He is first offender. The value of what was stolen, and what was found in his possession and executed in court was Kshs. 1000/=. Surely the sentence of 18 month’s imprisonment is harsh and uncalled for in all the circumstances of the case.
I accordingly set aside the sentence of 18 months imprisonment. The court will determine the sentence to pass in this matter after hearing he counsel for the appellant and the Probation Officer.
Dated this 28th day of July 2011.
LESIIT, J
JUDGE