[2021] KEHC 471 (KLR)
The court found that the prosecution's evidence regarding the accused's age was unverified and not availed for the court's scrutiny. The affidavit from the accused's mother, asserting a birth date of 3/3/2005, remained uncontested. The social inquiry report also confirmed the accused is a minor and suitable for a...
Source-derived case information.
- Citation
- [2021] KEHC 471 (KLR)
- Parties
- Applicant: Republic; Defendant: Wesley Kipkorir Rotich
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 3 of 2020
- Procedural Posture
- Criminal Case / Ruling on Prosecution's Application for Review of Committal Order
- Outcome
- Application for review of committal order allowed; accused placed on probation for two years.
- Judges
- AN Ongeri
- Legal Topics
- Manslaughter, Sentencing Review, Juvenile Justice, Age Determination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wesley Kipkorir Rotich
Defendant
Procedural Posture
Criminal Case / Ruling on Prosecution's Application for Review of Committal Order
Legal Issues
- 1 Whether the accused is eligible for committal to a Borstal institution based on his age.
- 2 Whether the prosecution's evidence regarding the accused's age is credible and sufficient to warrant review of the committal order.
- 3 What is the appropriate sentence for the accused given the uncertainty regarding his age.
Ratio Decidendi
The court found that the prosecution's evidence regarding the accused's age was unverified and not availed for the court's scrutiny. The affidavit from the accused's mother, asserting a birth date of 3/3/2005, remained uncontested. The social inquiry report also confirmed the accused is a minor and suitable for a noncustodial sentence. In the absence of credible evidence to the contrary, the court accepted the accused's minority status and reviewed the earlier sentence, placing him on probation for two years under supervision, rather than committal to a Borstal institution.
Court Disposition
Application for review of committal order allowed; accused placed on probation for two years.
Orders
- The earlier sentence is reviewed and the accused is placed on probation for a period of two years.
- The Kericho County probation officer shall closely supervise and monitor the accused person and ensure he continues with his education during the probation period.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CRIMINAL CASE NO.3 OF 2020
REPUBLIC………....…………...……………………………….…...PROSECUTOR
VERSUS
WESLEY KIPKORIR ROTICH………….……………………………. ACCUSED
RULING
1. The subject in this case, WKR was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code
2. The charge was reduced to one of manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code and the subject was committed to SB Institution for a period of 3 years on 17/3/2021.
3. The Prosecution filed an application dated 17/4/2021 seeking review of the Order committing the subject to the Borsal Institution on the ground that the birth certificate of the subject had been discovered showing he was born on 2/8/2001 and therefore he is 20 years old and not eligible to be committed to the Borstal Institution.
4. The Application was opposed by the subject’s Counsel who attached an Affidavit sworn by the mother of the subject stating that he was born on 3/3/2005 and not 2/8/2001 as alleged by the Prosecution.
5. It is not clear how the Prosecution obtained the birth certificate of the subject after the conclusion of the trial.
6. The said birth Certificate has not been availed to this Court for verification.
7. The mother of the subject has sworn an affidavit stating the subject was born on 3/3/2005 which has not been controverted.
8. This Court relied on a social inquiry report which also confirmed that the subject is a Minor.
9. The social inquiry report also confirmed that the Accused person is suitable for a noncustodial sentence.
10. I accordingly review the earlier sentence and place the Accused person on probation for a period of two years.
11. During that period, the Kericho County probation officer to closely supervise and monitor the Accused person and to ensure that he continues with his education.
Delivered, dated and signed at Kericho this 20th day of December, 2021
A. N. ONGERI
JUDGE