[2009] KEHC 120 (KLR)
The court held that although the accused was a minor at the time of the offence and could not be sentenced to death under Section 25(1) of the Penal Code and Section 190(1) of the Children’s Act, the trial itself was not a miscarriage of justice. The court found that any challenge to the conviction or the conduct of...
Source-derived case information.
- Citation
- [2009] KEHC 120 (KLR)
- Parties
- Respondent: Republic; Defendant: G.K.R
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 36 of 2008
- Procedural Posture
- Criminal Case / Ruling on Preliminary Objection Post Conviction, Pre Sentencing
- Outcome
- preliminary objection dismissed; sentencing to proceed in accordance with law for minors
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Death Penalty Exceptions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
G.K.R
Defendant
Procedural Posture
Criminal Case / Ruling on Preliminary Objection Post Conviction, Pre Sentencing
Legal Issues
- 1 Whether the charge sheet was defective for indicating a death sentence for a minor at the time of the offence.
- 2 Whether the accused, being a minor at the time of the offence, was entitled to have the trial conducted in camera.
- 3 Whether the court could sentence the accused to death given his age at the time of the offence.
Ratio Decidendi
The court held that although the accused was a minor at the time of the offence and could not be sentenced to death under Section 25(1) of the Penal Code and Section 190(1) of the Children’s Act, the trial itself was not a miscarriage of justice. The court found that any challenge to the conviction or the conduct of the trial should be pursued on appeal, as the court was functus officio after delivering its judgment. The preliminary objection regarding the alleged defects in the charge sheet and the conduct of the trial was therefore dismissed. The court confirmed that the accused, having been found guilty, could not be sentenced to death due to his age at the time of the offence, but the...
Court Disposition
preliminary objection dismissed; sentencing to proceed in accordance with law for minors
Orders
- The preliminary objection is dismissed.
- The accused shall not be sentenced to death, as he was a minor at the time of the offence.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
Criminal Case 36 of 2008
REPUBLIC ………….…………………………….PROSECUTOR
VERSUS
G.K.R ……………....................................….....………. ACCUSED
RULING
I: Background
1. This High Court heard and concluded the trial against G. K. R to its finality. The court found him guilty for the offence of murder contrary to Section 203 of the Penal Code.
2. The matter was coming up for sentencing when the advocate for the said G.K.R raised Preliminary Objection on this matter.
3. The first objection being that the charge/information was defective. At the time the offence was committed the subject was a minor. To state in the charge sheet as read with Section 204 of the Penal Code was in error. This should not have been described. The information charged speaks of death being imposed if found guilty.
4. The law further states that under Section 25(1) of the Penal Code no subject under the age of 18 years old is permitted to be sentence to death. This is supported by the latest Act under Section 190 (1)of the Children’s Act.
5. As the subject was a minor when the offence occurred he was therefore not afforded an opportunity to have his case heard in camera. This was therefore a mistrial. Where there is such mistrial the subject must be discharged. If he is then discharged because the court found him guilty as charged, he should be subjected to a second trial “in camera”as Section 138of the Penal Code would not allow a person to under go a second trial when they have either been acquitted or convicted of an offence.
6. The advocate pray I discharge the minor.
II: In reply by the state
7. The state said in reply that there was no miscarriage of justice. The courts hands are nonetheless tied. The court cannot acquit the minor at this stage.
III: Findings
8. This court is functus officio on the issue of finding of the subject guilty as charged. The only option the advocate has is to appeal against the findings of this court.
9. There must be a finality to a court case. If a finding has been arrived at the only option is an appeal unless it is to correct errors on the face of the record.
10. The trial was not a miscarriage as the subject is now an adult in 2009. The offence occurred in 2008 when he was a minor.
11. The application by way of a Preliminary Objection is rejected. It is dismissed.
12. On the issue of Sentence. I would agree that the law under Section 25(1) of the Penal Code and Section 190 (1) of the Children’s Act would not permit a minor under the age of 18 years old to be sentenced to death. The subject is now 18 years old. Will he be subjected to Death? The reading of the Section 25(1) states“at the time of the commission of the offence” the subject was a minor then he would not be subjected to a death sentence.
13. The Preliminary Objection is overruled.
DATEDthis 12th day of November, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocate
K.L. Kipyegon advocate instructed by the firm of M/S K.L. Kipyegon & Co. advocates for the Accused - present
P. Kiprop State Counsel instructed by the Attorney General for the state – present
Accused - present