[2019] KEHC 3647 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

PETITION NO. 248 OF 2018

SALIM HAMAD YANGA …..................................... 1ST PETITIONER

FNM .......................................................................... 2ND PETITIONER

JM ……….................................................................. 3RD PETITIONER

SMK .......................................................................... 4TH PETITIONER

MRM ......................................................................... 5TH PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTION .........RESPONDENT

JUDGMENT

The Petition

1. There are five Petitioners in this matter as follows: -

1. SALIM HAMAD YANGA

2. FNM

3. JM

4. SM

5. MRM

2. The common ground among the Petitioners is that they committed the offences and they were charged, and for some of them, convicted and sentenced while they were minors. They aver that, besides being convicted and sentenced as minors, they were sentenced to stay and live in prison with adult convictees and that this fact derogated from their rights as guaranteed in the Constitution. The Petitioners have served jail term ranging between 7 and 22 years being detained at the pleasure of the President. The Petitioners aver that their detention at the pleasure of the President is against the Constitution since the pleasure of the President is a period of uncertain length and this fact creates in them anxiety which is against the dictates of fair hearing provided under Article 50 of the Constitution.

3. Section 25(2) of the Penal Code under which the Petitioners were convicted and sentenced states as follows: -

“Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.”

4. The Petitioners have grown to young men in prison while being detained at the President’s pleasure. Justice Mativo dealt with the issue of constitutionality of holding child offenders at the pleasure of the President in the case of A.O.O. & 6 OTHERS VS. ATTORNEY GENERAL & ANOTHER (2017) eKLR. While allowing the Petition Judge Mativo proceeded to declare Section 25 (2) and (3) of the Penal Code as unconstitutional and violates the provisions of Article 53 (1) (f) (i) and (ii) and Article 160 (1) of the Constitution on the basis that a sentence under Section 25 (2) of the Penal Code is uncertain and cannot be determined.

5. It should be noted that the person being detained is a child. In most cases the detention is performed at the ordinary prisons where the child lives and mixes with adults. This may not be in the best interest of the child. In this particular Petition the Petitioners have grown from childhood to young adults and are now all over 30 years old. For all intents and purposes the child offenders are prisoners except that they have no idea when and how their jail term will end. This makes them leave in perpetual uncertainty which is not good and is against the Constitution and the best interest of the child. So, as was decided by Judge Mativo, it is best to leave the determination of the sentence of child offenders to the courts, which can easily be moved to make revision orders depending on the best interest of the child prisoner.

6. The Court of Appeal dealt with the issue of child offenders in the case of AWM VS. REPUBLIC NYERI CRIMINAL APPEAL NO. 156 OF 2006. In that case, a 17 year old girl was charged with the offence of murder. The victim was the accused’s child. Justice Khamoni (as he then was) convicted the accused on 31. 3.2006 and sentenced her to be detained at the pleasure of the President under Section 25 (2) of the Penal Code.

7. The Court of Appeal comprising Justice O’Kubasu, Justice Githinji and Justice Aganyanya held as follows: -

“In view of the foregoing, we are satisfied that the appellant was wrongly convicted before the superior court on a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. Accordingly, the conviction is set aside and substituted with one of a finding of guilty of infanticide contrary to Section 210 of the Penal Code. We also set aside the order of detention under President’s pleasure apparently imposed pursuant to Section 25 (2) of the Penal code and in its place we substitute a discharge under Section 191 (1) (a) of the Children Act taking into account the long period the appellant has been in custody. The appellant is to be set free forthwith unless otherwise lawfully held.”

8. The effect of the above decision is that if someone is convicted of infanticide and he or she is under the age of 18 years, he or she can be sentenced under section 191 of the Children Act. Secondly, the court can set aside the order of detention at the President’s Pleasure and release a convict.

9. In the case of J. M. K. VS. REPUBLIC (2015) eKLR the Court of Appeal avoided the issue of an order under Section 25 (2) of the Penal Code and opted to instead impose a prison sentence of ten (10) years. In doing so the court stated as follows: -

“A critical issue in this appeal relates to the appropriate sentence for a minor who has been convicted of murder. At the time of the offence, the appellant was a minor 16 years of age. The offence of murder attracts a mandatory death sentence. In Nyeri Criminal Appeal No. 118 of 2011 (JKK –Vs- R (2013) eKLR), this court had an opportunity to consider the appropriate punishment for a minor offender. The court stated that the offence of murder committed by the minor appellant was serious and an innocent life was lost. The appellant though a minor at the time of the offence was to serve a custodial sentence so that he could be brought to bear the weight and responsibility of his omission or lack of judgment. The court expressed that the appellant who now of age of majority could not be released to society before being helped to understand the consequences of his mistakes. (See also Republic –Vs- S. A. O., (a minor) [2004] eKLR and Nyeri Criminal Appeal No. 184 of 2009, Dennis Kirui Cheruiyot –Vs- R).

Section 190 (2) of the Children Act prohibits the sentencing of child offenders to death. Article 53 (2) of the Constitution and Section 4 of the Children Act provides for consideration of the best interest of the child in all actions concerning children. In the present case, the appellant was 16 years of age at the time of offence, he was above the age of 18 years at conviction and he could thus not be sent to a Borstal Institution. The relevant time in determining the age of a child for criminal liability is the age at the time of the offence not age at the time of conviction. We do not believe that it is in the best interest of the appellant to be indefinitely detained at the pleasure of the President. We take cognizance of the provisions of Article 53 (1) (f) of the Constitution which stipulates that if a child has to be detained, this has to be as a last resort and the detention must be for the shortest appropriate period of time. The appellant in this case was not found to be of unsound mind to be detained at the pleasure of the President. No legal provision was cited to us to support the order that if a minor offender is found guilty of murder he should be detained at the pleasure of the President. Due to the gravity of the offence and the current age of the appellant, he cannot be released to society. The Children Act prohibits a death sentence to a child offender, life sentence is also not provided for; we, therefore, allow the appeal to the extent that we substitute the order directing the appellant to be detained at the pleasure of the President with a custodial term of imprisonment for 10 years from the date of conviction by the trial court on 5th May, 2011. ”

10. I have carefully considered the Petition and the submissions of the parties. What is to note firstly is that the Petitioners were charged separately and in different causes. Save for Petitioner numbers 1 and 5 who were charged with the same offence and convicted and sentenced together, the only common denominator among the Petitioners is that they were charged as minors, or were convicted and sentenced as minors in, alleged violation of their constitutional rights.

11. Arising from the discourse above on the state of the law applicable herein, I am satisfied that this court has the jurisdiction to resentence the Petitioners under the Children Act as decided by the Court of Appeal in above cited decisions.

Petitioner Nos. 1 and 5

· SALIM HAMAD YANGA

· MRM

12. The 1st and 5th Petitioners were charged and convicted of murder. On the material day the Petitioners went to the deceased house where the deceased lived with her daughter. Her daughter cooked while the Petitioners including one not in the current Petition chatted with the deceased. The deceased’s daughter then served food to the Petitioners. After they had eaten to their full, they asked for money from the deceased for purchase of cigarettes. The deceased went to her bedroom to get for them the money. The Petitioners followed her inside, strangled her to death, and stole the money and other things. They also injured the deceased’s daughter who had to be treated for a while.

13. This was the most unkind action by the Petitioners. It is an offence for which the Petitioners must be properly punished. The jurisprudence which must come from this Court is that nobody will take away human life and get away with it. They killed in cold blood after having been fed by their victim. The young girl whose mother they killed was only 14 years. That young girl was younger than the Petitioners when the Petitioners decided to kill her mother. The sentencing must take into account the rights of the victims, and the need to deter the commission of the offence.

14. The 1st Petitioner herein was sentenced to death, while the 5th Petitioner being under the age of 18 was detained at the pleasure of the President, a situation which I have found to be unconstitutional and untenable under the current Constitution. However, due to the gravity of the offence and the current age of the Petitioners they cannot be released to society. They must understand the weight of their action. There is no evidence that they have reformed or that they are remorseful, except they have they allege that their rights as minors were violated.

15. Both death and life sentences are now not tenable under the Constitution. I allow the Petition in respect of the 1st and 5th Petitioners to the extent that I substitute the order directing the 1st Petitioner to suffer death with a jail sentence of forty (40) years from the date of conviction; and for the 5th Petitioner I substitute the order directing the 5th Petitioner to be detained at the pleasure of the President with a custodial term of imprisonment for forty (40) years from the date of conviction by the trial Court.

Petitioner No. 2 – FNM

16. The second Petitioner was charged and convicted for robbery with violence. Being a minor, he was sentenced to be detained at the pleasure of the President and has served seven (7) years in jail. I partly allow the Petition in respect of the 2nd Petitioner. I substitute the order directing the 2nd Petitioner to be detained at the pleasure of the President with a custodial term of imprisonment for twenty five (25) years from the date of conviction by the trial court on 15th march, 2012.

Petitioner No. 3 – JM

17. The Petitioner together with two others were charged with murder contrary to Section 203 as read with Section 204 of the Penal Code.

The deceased, a young man aged only 17 years joined other teenagers at a video kiosk in Bura Ndogo trading centre, Taveta Township on 6th February, 2011 at 7 p.m. to watch a live televised football match between Liverpool and Chelsea football clubs. After the match, at about 8 p.m. the deceased, in the company of Martin Juma (PW1) Asenga Mwanchira (PW2) and Paul Masomo (PW3) were homebound when the latter stopped at a shop to buy some items as the rest walked ahead. The trio were accosted by a group of three other young men armed with an iron rod, rungu (club) and stones. When the group attacked, PW1 and PW2 took to their heels leaving the deceased behind after falling down as the assailants continued beating him. PW2 reached PW3 and told him what they had encountered. PW3 rushed to the scene and found the deceased being beaten by the three young men who he straight away recognized with the help of electric light from a nearby shop. The three were from his village. He got hold of one of them by the name Lovena but was hit on the hand and had to let him go. The attackers then escaped. The deceased who was in a critical condition was taken to Taveta Hospital. As his condition did not seem to improve he was taken to a hospital across the border, to Moshi, Tanzania. The attack was reported to the police and with the assistance of PW3 a man-hunt for the three attackers was launched in the village. The three appellants were ultimately arrested and charged initially with assault causing grievous harm. Four days after the incident the deceased succumbed to the injuries inflicted during the attack and died on 10th February, 2011. The appellants were then charged with murder contrary to Section 203 as read with Section 204 of the Penal Code. At some point the third suspect escaped and had not been traced by the time the trial concluded.

18. Upon hearing and dismissing his appeal, the Court of Appeal ordered that the Petitioner be detained during the President’s pleasure since the Petitioner was a minor at the time of the commission of the offence. Like I said in the case of the 1st and 5th Petitioners, the offence which was committed by the 3rd Petitioner was very grave and must be punished appropriately. The Petitioner is now a man, and at his age he should not be released to the society until such a time as he shall have paid for his action, is rehabilitated and sufficiently reformed to live in a free society.

19. Accordingly therefore I partly allow the Petition. I substitute the order directing the 3rd Petitioner to be detained at the pleasure of the President with a custodial term of thirty (30) years from the date of conviction by the trial court.

Petitioner No. 4 – MSK

20. The 4th Petitioner was charged with offence of robbery with violence in which a child of 8 years died, and her sister of 14 years injured. At the time of committing the offence the Petitioner was a minor of 17½ years. The deceased, eight (8) years old at the time of her death, and her sister, also a child aged fourteen (14) years, were on the night of 21st December, 2009 left on their own in their one-roomed house which they shared with 8 goats, at Mgome Village, Msambweni when their parents travelled to Mombasa. That night they were viciously attacked by a gang of robbers resulting in the death of the deceased while her sister survived with grievous injuries. The latter who was in a state of coma spent two weeks in hospital.

21. The 4th Petitioner was convicted of the offence and being a minor, detained at the pleasure of the President under S. 25 (2) of the Penal Code. The Petitioner now seeks a definite sentence from this court, with a further prayer that he be released altogether taking into account the number of years he has served in prison as a minor.

22. I have carefully considered the Petition. The Petitioner committed a serious offence which led to the death of a minor aged eight (8) years and left a 14 year old girl with grievous injuries. The Petitioner deserves to be adequately punished for this kind of crime. The Petitioner is still young and full of energy. He is a danger to society and cannot be released until he is fully rehabilitated and is reformed. The time so far served in prison cannot be considered to answer for retribution. The victims of his crime are still crying and the court must have this in mind.

In the end I partly allow the Petition. I substitute the order directing the 4th Petitioner to be detained at the pleasure of the President with a custodial term of 35 years from the date of conviction.

Disposition

23. Accordingly the court is not satisfied that the Petitioners have proved their Petition as required by law or that they are entitled to the orders they seek except that the court grants the prayer for resentencing, and enters Judgment on the Petition as follows: -

(i) The 1st Petitioner SALIM HAMAD YANGA is sentenced to forty (40) years in prison from the date of conviction.

(ii) The 2nd Petitioner FNM is hereby sentenced to twenty five (25) years in prison from the date of conviction.

(iii) The 3rd Petitioner JM is sentenced to thirty (30) years in prison from the date of conviction.

(iv) The 4th Petitioner SMK is sentenced to thirty five (35) years in prison from the date of conviction.

(v) The 5th Petitioner MRM is sentenced to forty (40) years in prison from the date of conviction.

Right of appeal in 14 days.

Delivered, Dated and Signed at Mombasa this 15th day of October, 2019.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Fedha for DPP

Petitioners in person

Mr. Kaunda Court Assistant