[2020] KEHC 7757 (KLR)
The court determined that the age of the second accused is a preliminary and critical issue that must be resolved before judgment can be delivered, as it directly affects criminal responsibility and potential sentencing under the Penal Code. Neither the prosecution nor the defence has provided sufficient evidence of...
Source-derived case information.
- Citation
- [2020] KEHC 7757 (KLR)
- Parties
- Applicant: Republic (Director of Public Prosecutions); Defendant: Gladys Apondi Osero; Defendant: SOO
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 52 of 2012
- Procedural Posture
- Criminal Case / Pre Judgment Interlocutory Ruling on Age Assessment
- Outcome
- Interlocutory orders issued for age assessment and production of birth certificate before judgment.
- Judges
- DN Musyoka
- Legal Topics
- Criminal Liability of Minors, Age Assessment, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic (Director of Public Prosecutions)
Applicant
Gladys Apondi Osero
Defendant
SOO
Defendant
Procedural Posture
Criminal Case / Pre Judgment Interlocutory Ruling on Age Assessment
Legal Issues
- 1 Whether the second accused was of an age to bear criminal responsibility at the time of the alleged offence.
- 2 Whether the age of the second accused has been adequately established for purposes of criminal liability and sentencing.
Ratio Decidendi
The court determined that the age of the second accused is a preliminary and critical issue that must be resolved before judgment can be delivered, as it directly affects criminal responsibility and potential sentencing under the Penal Code. Neither the prosecution nor the defence has provided sufficient evidence of the second accused's age, and the court cannot proceed to judgment without this information. Therefore, the court ordered an age assessment and production of a birth certificate to establish the second accused's age as at the date of the alleged offence and at present.
Court Disposition
Interlocutory orders issued for age assessment and production of birth certificate before judgment.
Orders
- The second accused, SOO, shall be escorted to Kakamega County Referral Hospital for age assessment as at 24th December 2012 and as at the date of assessment.
- The second accused and/or his surety shall within fourteen days furnish the court with a copy of his certificate of birth.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL CASE NO. 52 OF 2012
REPUBLIC........................DIRECTOR OF PUBLIC PROSECUTIONS
VERSUS
GLADYS APONDI OSERO..............................................1ST ACCUSED
SOO.....................................................................................2ND ACCUSED
RULING
1. In the course of preparing judgement in this case, the age of the second accused has become a matter of serious consideration, taking into account what the law says about criminal liability for minors.
2. The prosecution did not have the age of the second accused assessed or, alternatively, proved by other means. The defence has equally not made an effort to place before the court material on his age. His age has been variously been said to be at 12 and 14 as at December 2012. When he testified he stated that he was born in 2002, which placed him at the age bracket of 10 to 11 in 2012. Given the provisions of section 14(2) of the Penal Code, Cap 63, Laws of Kenya, that could be critical with respect to criminal responsibility of children of immature age, and later sentencing, should the court find him guilty.
3. Consequently, it would be critical to establish the age of the second accused as at the date of the commission of the offence, as a preliminary issue before judgment is prepared and delivered.
4. Accordingly, I direct as follows:
(a) That the second accused person, SOO, shall be escorted to the Kakamega County Referral Hospital for the purpose of assessment of his age as at 24th December 2012 and as at the date of the assessment;
(b) That the second accused and or his surety shall in the next fourteen days furnish the court with a copy of his certificate of birth; and
(c) That the matter shall be mentioned thereafter for compliance and fixing a date for judgement.
DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 27TH DAY OF FEBRUARY 2020.
W MUSYOKA
JUDGE