[2015] KEHC 8435 (KLR)
The court found that the child, being under 18 years of age, was wrongly sentenced to imprisonment contrary to the express provisions of the Children Act. The law requires that children in conflict with the law should not be imprisoned but instead be placed in a Borstal institution or dealt with through other lawful...
Source-derived case information.
- Citation
- [2015] KEHC 8435 (KLR)
- Parties
- Applicant: T A A (Suing as mother and next friend of I M O); Respondent: Attorney General; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Petition 1 of 2015
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed. The child to be removed from prison and placed in a Borstal institution.
- Judges
- DAS Majanja
- Legal Topics
- Child Rights, Juvenile Justice, Sentencing of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
T A A (Suing as mother and next friend of I M O)
Applicant
Attorney General
Respondent
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether a child can be lawfully sentenced to imprisonment under Kenyan law.
- 2 Whether the sentencing of the child to imprisonment violated the Children Act.
Ratio Decidendi
The court found that the child, being under 18 years of age, was wrongly sentenced to imprisonment contrary to the express provisions of the Children Act. The law requires that children in conflict with the law should not be imprisoned but instead be placed in a Borstal institution or dealt with through other lawful means appropriate for minors. The court therefore ordered the immediate removal of the child from prison custody and placement in a Borstal institution for the remainder of his minority, in compliance with section 191(1)(a) of the Children Act.
Court Disposition
Petition allowed. The child to be removed from prison and placed in a Borstal institution.
Orders
- The child shall be removed from prison custody forthwith.
- The child shall be placed in a Borstal Institution for the time of his minority in accordance with section 191(1)(a) of the Children Act.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
PETITION NO. 1 OF 2015
BETWEEN
T A A (Suing as mother and next
friend of I M O) …….................................................. PETITIONER
AND
ATTORNEY GENERAL …………….…...………………………1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS ........................... 2ND RESPONDENT
JUDGMENT
1. The petition lodged in this Court is by T A A who is the mother of I M O (“the child”). It is not disputed that the child was charged with the offence of escape from lawful custody contrary to section 123 as read with section 36 of the Penal Code (Chapter 63 of the Laws of Kenya) at the Chief Magistrates Court at Oyugis (Criminal Case No. 23 of 2015). He pleaded guilty and was sentenced to serve 18 months imprisonment.
2. The gravamen of this petition is that as a child, he ought not to have been sentenced to imprisonment. Mr. Oluoch, learned counsel for the Director of Public Prosecutions, concedes that the birth certificate shows that he was born on 2nd March 1998 which confirms that he is below the age of 18 years. He therefore falls under the definition of a child under section 2 of the Children Act (Chapter 141 of the Laws of Kenya).
3. In the circumstances the order that commends itself to this Court is that the child shall be removed from prison custody forthwith and placed in a Borstal Institution for the time of his minority in accordance with the provisions of section 191(1)(a) of the Children Act.
DATED and DELIVERED at MIGORI this 9th day of April 2015.
D.S. MAJANJA
JUDGE
Ms Ashioya instructed by Oduk and Company Advocates for the petitioner.
Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Director of Public Prosecutions for the 2nd respondent.