[2023] KEHC 26697 (KLR)
The court determined that, based on the accused's testimony and the probation report, there was a strong indication that the accused was a minor at the time the offence was committed. Consequently, the court held that the sentencing must be conducted in accordance with the Children Act, 2022, which prohibits...
Source-derived case information.
- Citation
- [2023] KEHC 26697 (KLR)
- Parties
- Applicant: Republic; Defendant: NOO
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E011 of 2022
- Procedural Posture
- Criminal Case / Ruling on Sentencing Procedure
- Outcome
- Further proceedings stayed pending production of documentary evidence of the accused's date of birth.
- Judges
- WM Musyoka
- Legal Topics
- Juvenile Justice, Sentencing of Minors, Age Determination, Children in Conflict With Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
NOO
Defendant
Procedural Posture
Criminal Case / Ruling on Sentencing Procedure
Legal Issues
- 1 Whether the accused was a minor at the time of the offence and should be sentenced as such.
- 2 What sentencing options are available under the Children Act, 2022 for minors convicted of serious offences.
Ratio Decidendi
The court determined that, based on the accused's testimony and the probation report, there was a strong indication that the accused was a minor at the time the offence was committed. Consequently, the court held that the sentencing must be conducted in accordance with the Children Act, 2022, which prohibits imprisonment and the death penalty for minors. However, before proceeding to sentencing, the court required documentary evidence to conclusively establish the accused's date of birth and confirm his age at the time of the offence. The court emphasized that the accused should be treated as a minor if the evidence supports his claim, and that all sentencing guidelines for children in...
Court Disposition
Further proceedings stayed pending production of documentary evidence of the accused's date of birth.
Orders
- The court directed that documentary material on the accused's date of birth be placed before it to determine his actual age at the time of the offence before sentencing.
Full Case Text
Judgment text and source record
20 paragraphs
Republic v NOO (Criminal Case E011 of 2022) [2023] KEHC 26697 (KLR) (20 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26697 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Case E011 of 2022
WM Musyoka, J
December 20, 2023
Between
Republic
Prosecution
and
NOO
Accused
Ruling
1. When the accused herein testified on 12th October 2023, he stated that he was in Standard 8 in primary school, and that he was 18 years old, having been born in 2005. He could not recall the exact date of birth. I see from the probation report that his age at the time he was interviewed was 18 years.
2. The offence herein was committed on 18th August 2022. That would suggest that the accused was below the age of majority, and, therefore, a minor. Ideally, he should have been tried as a minor, and I wish that that had been brought to my attention in the course of the trial, so that I could treat him as such.
3. Section 221(3) of the Children Act, No. 29 of 2022, Laws of Kenya, applies the provisions of Part XV, Children in Conflict with the Law:“.... to a person who reaches the age of eighteen years before proceedings instituted against them pursuant to the provisions of this Act have been concluded.”That would include the sentences available in the event of conviction.
4. Section 238(1)(2) of the Children Act provide that imprisonment and the death penalty are not sentences available to children, by commanding that“No court shall order the imprisonment of a child”and“Notwithstanding the nature of any offence punishable by death, no court shall impose the death penalty on a child on a finding of guilty for such an offence.”
5. Now that it merges that the accused was probably a minor, his sentencing should be that of a minor, based on the guidelines in the Children Act, 2022. Before I do anything else in this matter, I will need material placed before me, documentary in nature, on the date of birth of the accused person, to satisfy myself as to the actual age of the accused person as at the date when the offence was committed.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 20TH DAY OF DECEMBER 2023W MUSYOKAJUDGEIn the presence of:Mr. Arthur Etyang, Court AssistantAdvocatesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the Republic.Mr. Ouma, Advocate for the accused person.