https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7436

RNK(Suing as the mother and next friend to BKK) v Republic (Criminal Revision E039 of 2026) [2026] KEHC 7436 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7436 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Revision E039 of 2026 JK Sergon, J May 28, 2026 Between RNK(Suing As The Mother And Next Friend To BKK) Applicant and Republic Respondent Ruling 1.Pursuant to the provision of section 362 and 364 of the Criminal Procedure Code, the record relating to Nakuru MCCR E691 of 2026 was placed before this court for perusal and examination in exercise of its supervisory power of revision. This court while exercising that power, is required to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court. I examined the aforesaid record and it is apparent that Brian Kiplagat hereinafter referred to as the ‘applicant’ and Peter Ekale were jointly charged with offence of malicious damage to property contrary to section 339(1) of the Penal Code. 2.The particulars of the offence are that on 22nd March, 2026 at around 05.00hrs at [Particulars Withheld] in Gilgil sub-county within Nakuru county, wilfully and unlawfully damaged electrical properties which include (1) aluminium electric cable approximately 50m, (2) electric snake light coloured approximately 50m, (3) one chaser pin (4) 200 watts flood light and (5) two 50 watts flood light all valued at Ksh 69,500/=, the property of Godfrey Wanjau Matu. 3.When applicant appeared before Hon L. Gitari, learned Resident Magistrate, for plea, he pleaded guilty to the charge. He was then convicted and sentenced to pay a fine of Kshs 30,000/= in default to serve 6 months imprisonment. It would appear the applicant did not raise the fine hence he is still serving the default sentence. 4.The record also shows that Peter Ekale pleaded not guilty but later he executed a plea bargain agreement whereof he was convicted on his own plea of guilty and sentenced to pay a fine of Ksh 10,000/= in default to serve 8 months imprisonment. 5.The mother of the applicant namely RNK, applied to this court to exercise its supervisory power of revision alluded hereinabove. M/s Kerubo, learned advocate for the applicant appeared before this court and made submissions to the effect that Brian Kipagat was a minor at the time he took plea. It is apparent from the birth certificate presented to this court that Brain Kipagat was aged 17 years 8 months when he took plea. He was therefore a minor. 6.The learned advocate further pointed out that the trial court failed to conduct age assessment and neither did she conduct any inquiry to ascertain the applicant’s age before taking plea and before sentencing. 7.It is further the submission of the applicant that he was treated as an adult during plea taking and that he pleaded guilty without fully understanding the consequences due to his age. 8.It is the submission of the applicant that the sentence meted out against the applicant is unlawful for a minor. The learned advocate also pointed out that the applicant is currently detained in an adult correctional facility which is prejudicial and illegal. Miss Bosire, learned prosecution counsel agreed with the submissions of Miss Kerubo that the applicant’s conviction and sentence are irregular, illegal and contrary to the law governing children. 9.I have already set out the purpose of this court in exercising it supervisory power of revision. After careful consideration of the oral submissions made by learned counsels and perusing the material placed before this court, it is not in dispute that the police officer who arrested the applicant did not summon or issue a written notice to the parent or guardian of the child and neither did he notify the children’s officer within 24 hours thus breaching the provisions of section 218 of the Children Act, 2022. 10.The Children Officer having not been notified of the arrest of the child offender did not therefore submit a report on the applicant. 11.It is also apparent that the court which heard the applicant’s case did not comply with Section 219(5) of the Children Act. The court was required to apply all the provisions of the Children Act as relates to the safeguards to be accorded to child offenders. 12.There is no evidence from the record that the applicant was accorded the right of legal representation and the presence of a parent or guardian at his trial as required under Section 222(2) of the Children Act. 13.The trial court was required to conduct a preliminary inquiry for every child prior to taking plea under Section 228(1) of the Children Act 14.The purpose of the preliminary inquiry will also assist the court establish whether the matter can be diverted and to also identify suitable diversion before plea. 15.The preliminary inquiry will further assist the court to determine whether the case should actually be transferred to the Children’s Court. 16.Under Section 237(1) of the Children’s Act, the law bars the use of the words ‘conviction’ and ‘sentence’ in relation to a child being dealt by the court. 17.The law under Section 238(1) of the Children Act expressly states that no court shall order for the imprisonment of a child. The court used the words “conviction” and “sentence” in the applicant’s case. The court also meted out a sentence of a fine of Ksh 30,000/= in default to serve 6 months imprisonment. 18.The sum total of my perusal of the trial court records is that the applicant’s trial was undertaken contrary to the provision of the Children Act. The whole trial process was irregular and its outcome cannot be allowed to stand. 19.It is also contrary to the provisions of the Children Act that the applicant is serving a default sentence in an adult correctional facility. 20.This court is entitled to interfere with the decision of the trial court in exercise of its supervisory power of revision. 21.Consequently, Brian Kiplagat’s plea of guilty is declared equivocal hence it stands quashed. The sentence meted out is set aside. 22.The applicant namely Brial Kiplagat should be set free forthwith unless lawfully held. DATED, SIGNED AND DELIVERED THIS 28TH DAY OF MAY, 2026 AT NAKURU.J. K. SERGONJUDGE