[2014] KEHC 2148 (KLR)
The court found that the appellant was a minor, aged 17 years at the time of the offence, and that the trial court failed to ascertain his age before conviction and sentencing. This omission resulted in the appellant being wrongfully sentenced as an adult, contrary to the mandatory requirements of the Children’s Act...
Source-derived case information.
- Citation
- [2014] KEHC 2148 (KLR)
- Parties
- Appellant: S O L; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; appellant to be released unless otherwise lawfully held.
- Legal Topics
- Sexual Offences, Sentencing of Minors, Age Assessment, Rights of Child Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S O L
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in convicting and sentencing the appellant as an adult when he was a minor at the time of the offence.
- 2 Whether the appellant's rights under the Children’s Act were violated by failing to ascertain his age before trial and sentencing.
Ratio Decidendi
The court found that the appellant was a minor, aged 17 years at the time of the offence, and that the trial court failed to ascertain his age before conviction and sentencing. This omission resulted in the appellant being wrongfully sentenced as an adult, contrary to the mandatory requirements of the Children’s Act and the Borstal Institutions Act. The proper procedure would have been to commit the appellant to a borstal institution for a maximum of three years. Since the appellant had already served more than three years in prison, the court held that he had served the maximum lawful sentence applicable to a minor and that his continued detention was unlawful. The conviction and...
Court Disposition
appeal allowed; conviction and sentence set aside; appellant to be released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction and sentence imposed on the appellant are set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
CRIMINAL APPEAL NO.17 OF 2012
S O L..............................................................................APPELLANT
VERSUS
REPUBLIC..................................................................RESPONDENT
(Appeal from the original conviction and sentence in Criminal Case Number 148 of 2011 in the
Senior Resident Magistrate’s court at Baricho – HON. J.N. MWANIKI (SRM)
JUDGEMENT
S O L appellant herein was charged with sexual assault contrary to Section 5(1)(a) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The appellant was tried and sentenced with the 1st count and convicted to serve 15 years in jail. The appellant was aggrieved and has appealed to this court against both conviction and sentence and has listed 8 grounds of appeal.
This court has looked at the grounds and the record and will consider only the first ground in the appeal which is that the appellant was convicted as an adult when infact he was a minor at the material time. When this appeal came up for directions before this court on 19th February 2014, this court directed the appellant to undergo an age assessment test which was done and the report filed in court. I have perused the report by one JOHN K. MWANGI a medical Superintendent from Kerugoya District Hospital dated 23rd April 2014 and noted that on the date of the assessment (23rd April 2014) the appellant was aged 20 years. This means that at the time of the commission of the offence he was aged 17 years old. The trail court appears not to have taken the age of the appellant into consideration during the trial and even during sentencing. The learned magistrate as a result fell into error.
I have considered both submissions of the appellant and the State and I consider the Director of Public Prosecutions submissions particularly relevant and important in this appeal. The appellant herein was a child during the material time within the meaning of Section 2 of the Children’s Act. I have not faulted the learned magistrate on the finding of guilt on the part of the appellant. There was sufficient evidence placed before the trial court. However having seen the accused in court, it was incumbent upon the court to establish the age of the accused before proceeding with the trial so as to observe the rights of the suspect under the Children’s Act. Had the learned magistrate done so then he should have invoked the operation of Section 191(g) of the Children’s Act upon convicting the appellant the provisions states:-
“In spite of the provisions of any other law and subject to this act, where a child is tried for an offence, and the court is satisfied as to his guilt the court may..........incase of a child who has attained the age of 16 years dealing with him, in accordance with any act which provides for establishment and regulation of a borstal institution”.
The appellant ought to have been placed in a borstal institution which is created by law to deal with youthful offenders and their detention therein.
Under section 6(1) of Borstal institutions act Cap 92 laws of Kenya the maximum period for an offender to be detained in borstal institution is 3 years.
This court finds that the appellant has been held wrongfully in prison for more than 3 years now and under the law he has served his sentence courtesy of his age and the law applicable.
This court for the above reasons finds merit in the appeal. It was unsafe for the trial court to convict and sentence the appellant without ascertaining his age. This appeal is therefore allowed the conviction and the sentence imposed on the appellant is set aside. I direct that he shall be released forthwith unless otherwise lawfully held.
R.K. LIMO
JUDGE
DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 27TH DAY OF OCTOBER 2014 in the presence of
The Appellant
Mr sitati for state
Mbogo Court clerk