[2023] KEHC 17876 (KLR)
The court found that although the accused was a minor at the time of arrest, he had attained the age of majority by the time of sentencing, making the direct application of section 239(1)(g) of the Children Act inapplicable. However, the court considered the accused's youth, first offender status, refugee...
Source-derived case information.
- Citation
- [2023] KEHC 17876 (KLR)
- Parties
- Applicant: Republic; Defendant: ML
- Court
- High Court
- Court Station
- High Court at Lodwar
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E016 of 2021
- Procedural Posture
- Criminal Case / Sentence
- Outcome
- The accused was sentenced to serve 2 years imprisonment.
- Judges
- JK Sergon
- Legal Topics
- Murder, Sentencing of Minors, Mitigation, Children Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
ML
Defendant
Procedural Posture
Criminal Case / Sentence
Legal Issues
- 1 Whether the accused, having been convicted of murder, should be sentenced as a minor or adult given his age at the time of arrest and conviction.
- 2 What mitigating factors should influence the sentence imposed on the accused, including his status as a first offender, refugee, and family circumstances.
- 3 Whether section 239(1)(g) of the Children Act No 29 of 2022 is applicable to the accused given his attainment of majority age.
Ratio Decidendi
The court found that although the accused was a minor at the time of arrest, he had attained the age of majority by the time of sentencing, making the direct application of section 239(1)(g) of the Children Act inapplicable. However, the court considered the accused's youth, first offender status, refugee background, remorse, family forgiveness, and time already spent in custody as significant mitigating factors. Balancing these considerations, the court determined that a short custodial sentence was appropriate rather than the maximum penalty for murder, reflecting both the seriousness of the offence and the unique circumstances of the accused.
Court Disposition
The accused was sentenced to serve 2 years imprisonment.
Orders
- The accused, ML, is sentenced to serve 2 years imprisonment.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v ML (Criminal Case E016 of 2021) [2023] KEHC 17876 (KLR) (31 May 2023) (Sentence)
Neutral citation: [2023] KEHC 17876 (KLR)
Republic of Kenya
In the High Court at Lodwar
Criminal Case E016 of 2021
JK Sergon, J
May 31, 2023
Between
Republic
Prosecutor
and
ML
Accused
Sentence
1. The Accused Person herein namely:- ML was on 30th March convicted for the offence of Murder.
2. Mr. Kakoi, learned State Counsel urged this court to treat the accused as a first offender since he did not have the accused’s past criminal record.
3. The Accused was invited to make submissions on mitigation. Miss Maryanne Kariuki learned advocate for the accused filed written submissions in mitigation. This court also called for a probation pre-sentence report.
4. Miss Kariuki indicated that the Accused was arrested while under the tender age of 14 years hence he was not aware of the legal or factual consequences of his actions.
5. The learned advocate further stated that the Accused is a child refugee who fled civil war in Southern Sudan therefore he is in need of protection and guidance as a minor under the Children Act No 29 of 2022. The accused is unable to trace his family whom he left in Southern Sudan. It is said that the Accused is remorseful and that he had no malice aforethought.
6. This court was beseeched to be lenient to the Accused. I have also considered the probation pre-sentence report. In the aforesaid report it is indicated that the Accused is a youthful offender aged 18 years residing with his younger brother aged 17 years at Kakuma Refugee camp. It is pointed out that the Accused recently completed class 8 while in custody at Kakuma GK Prison.
7. The report indicates that the deceased was the Accused’s Uncle and that his family also serves as the victim’s family. It is also indicated that the family is ready to forgive the Accused and are willing to accept him back home so that he can continue with his education.
8. I have considered the mitigating factors and the fact that the Accused is a first offender. I have also taken into account the fact that the Accused is a youthful offender hence he should be dealt with under the section 239 (1) (g) of the Children Act No 29 of 2022. This court also takes note of the fact that the Accused has been in custody for 1 ½ years. I formed the opinion that the Accused should be dealt with under section 239(1)(g) of the Children’s ActNo 29 of 2022. However, the Accused has now reached the age of majority hence that Provision may not be applicable.
9. Having considered the mitigating factors in its totality, I find that a short custodial sentence is appropriate.
10. The Accused namely; ML is hereby sentenced to serve 2 years imprisonment.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 31ST DAY OF MAY, 2023. …………………………J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohProsecutor - KakoiAccused – Present in Prison