[2017] KEHC 1505 (KLR)
The court found that the appellant was a minor at the time of the offence, having been confirmed by age assessment to be 17 years old at the time of appeal and approximately 15 years old at the time of the offence. The trial court failed to consider the appellant's age and did not sentence him in accordance with the...
Source-derived case information.
- Citation
- [2017] KEHC 1505 (KLR)
- Parties
- Appellant: Stanley Wendo Mwavi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 53 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; sentence quashed and set aside
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing of Minors, Plea of Guilty, Illegal Sentence, Children Rights, Mitigation, Age Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Wendo Mwavi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in sentencing the appellant, a minor, to imprisonment contrary to the law protecting children.
- 2 Whether the appellant's mitigation and age were properly considered during sentencing.
- 3 Whether the sentence imposed was illegal and should be set aside.
Ratio Decidendi
The court found that the appellant was a minor at the time of the offence, having been confirmed by age assessment to be 17 years old at the time of appeal and approximately 15 years old at the time of the offence. The trial court failed to consider the appellant's age and did not sentence him in accordance with the Children’s Act, instead imposing a custodial sentence contrary to the law protecting minors. The court emphasized that sentencing a minor to prison is a serious miscarriage of justice and that the trial court should have been more observant and inquired into the appellant's age. Consequently, the sentence imposed was declared illegal, quashed, and set aside. The appellant,...
Court Disposition
appeal allowed; sentence quashed and set aside
Orders
- The sentence imposed on the appellant is quashed and set aside as illegal.
- The appellant is released from prison and placed under the supervision of the Probation Office Nyahururu for 6 months for monitoring and counseling.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAHURURU
CRIMINAL APPEAL NO.53 OF 2017
(Appeal Originating from Nyahururu CM’s Court
Cr.No.53 of 2015by: Hon. V.A. Ochanda – R.M.)
STANLEY WENDO MWAVI.....................................APPELLANT
- V E R S U S -
REPUBLIC.............................................................RESPONDENT
J U D G M E N T
Stanley Wendo Mwavi was charged with three offences namely:
Count 1:
House breaking Contrary to Section 304(1) and stealing Contrary to Section 279(B) of the Penal Code
Particulars:
On 5th day of July, 2015 at Mugumo-ini Village within Laikipia County, broke and entered the dwelling house of James Kigamba Njorogewith intent to steal cash Kshs.14,000/=, three shirts valued at Kshs.1,500/= and one short trouser valued at Kshs.300/=, all valued at Kshs.15,800/= the property of the said James Kigamba Njoroge.
Alternative Charge:
Handling stolen property Contrary to Section 32(1)(2) of the Penal Code.
Particulars:
On 12th day of July, 2015 at Mugumo-ini Village within Laikipia County, otherwise than in the course of stealing, dishonestly retained three shirts, one short trouser knowing or having reason to believe them to be stolen goods.
Count II:
House breaking Contrary to Section 304(1) and stealing Contrary to Section 279(B) of the Penal Code
Particulars:
On 12th day of July, 2015 at Mugumo-ini Village within Laikipia County, broke and entered the dwelling house of Simon Kagwi Kamauwith intent to steal from therein and did steal five blankets all valued at Kshs.3,500/= the property of the said Simon Kagwi Kamau.
Count III:
Being unlawfully in possession of identity card Contrary to Section 14(1)(f) of the National Registration Act Cap 107 Laws of Kenya.
Particulars:
On 12th day of July, 2015 at Mugumo-ini Village within Laikipia County, was found unlawfully possessing an identity card No.32211133, belonging to Simon Maina Mureithi.
He was arraigned before Hon. Ochanda Resident, Magistrate on 16/7/2015 and pleaded guilty to all the charges. He was convicted and sentenced as follows:
Count I:
3 years imprisonment on each limb
Count II:
3 years imprisonment on each limb
Count III:
Fine of Kshs.20,000/= in default 6 months imprisonment.
The court directed that the sentences in Counts I and II run concurrently but Count III was to run consecutively to Counts I & II.
The appellant has filed an appeal challenging sentence only. In his petition he contends that the court failed to take into account the fact that he was a minor, being less than 18 years old, that he is a first offender, that the sentence is too harsh and further that his mitigation was never considered. In his grounds, he seemed to be challenging the conviction too but changed at the hearing and stated that he only wanted a reduction of the sentence.
Mr. Mong’are, counsel for the State, did not oppose the appeal but left it to the court’s discretion.
After the plea of guilty and conviction were entered against the appellant, the prosecutor said that the appellant had no previous records. The appellant was invited to give his mitigation but he remained silent. Having done so, there is no way the court would have known about his background, that he was an orphan, under the care of a grandmother and had siblings to fend for. The appellant’s life has only been disclosed in the grounds of appeal.
In his grounds, the appellant claims to be 18 years old. This court sent him for age assessment and the Doctor has confirmed that his apparent age is 17 years according to his dental formula. He is still a minor. It means that when the appellant committed this offence in July, 2015, he was much younger, about 15 years old. He was therefore a minor and should have been treated as a minor and should not have been sent to prison.
Having pleaded guilty and a minor, the court should have considered sentencing the appellant under the Children’s Act or given any other sentence provided under the law. At this stage, I must point out that the trial court should not be hasty to send accused persons to prison especially where there may be a doubt as to the suspect’s age. The court taking plea should be observant and ask the suspect questions if necessary because sentencing a minor to prison is a serious miscarriage of justice on a child, yet the court should be the first protector of a child’s rights.
In the end, I do find that the sentence is illegal; it is hereby quashed and set aside. The appellant has already served about 2 years in prison. I will release him to be monitored and counseled by the Probation Office Nyahururu, for 6 months. Otherwise, he is set at liberty forthwith unless otherwise lawfully held.
Dated, Signed and Delivered at NYAHURURU this 29thday of June., 2017.
.............................
R.P.V. Wendoh
JUDGE
PRESENT:
Mr. Mutembei - Prosecution Counsel
Soi - Court Assistant
Appellant - present