[2020] KEHC 1963 (KLR)
The court found that the sentence imposed on the minor, which included a default term of imprisonment for non-payment of a fine, was illegal. This was because section 190(1) of the Children Act expressly prohibits the imprisonment of children. Furthermore, even if imprisonment were permissible, the default sentence...
Source-derived case information.
- Citation
- [2020] KEHC 1963 (KLR)
- Parties
- Applicant: VNM (suing on behalf of GOM - a minor); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E033 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Sentence set aside; minor ordered released from prison unless otherwise lawfully held.
- Judges
- AM Cockar
- Legal Topics
- Sentencing of Minors, Default Sentences, Illegal Sentences, Children Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
VNM (suing on behalf of GOM - a minor)
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the default sentence of imprisonment imposed on a minor for non-payment of a fine was lawful.
- 2 Whether the sentence contravened section 190(1) of the Children Act.
Ratio Decidendi
The court found that the sentence imposed on the minor, which included a default term of imprisonment for non-payment of a fine, was illegal. This was because section 190(1) of the Children Act expressly prohibits the imprisonment of children. Furthermore, even if imprisonment were permissible, the default sentence exceeded the statutory maximum under section 28(2) of the Penal Code. The court therefore set aside the sentence and ordered the immediate release of the minor, holding that the trial court's sentence was ultra vires and contrary to the law protecting children from imprisonment.
Court Disposition
Sentence set aside; minor ordered released from prison unless otherwise lawfully held.
Orders
- The sentence imposed against the subject is set aside.
- The subject is to be released from prison immediately unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUPLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION CASE NO. E033 OF 2020
LESIIT, J
VNM (suing on behalf of GOM - a minor).................................................1ST APPLICANT
VERSUS
REPUBLIC....................................................................................................RESPONDENT
RULING
I have considered the application by the mother of the subject argued on her behalf by Mr. Mwendwa and Mr. Wambui.
The State was represented by learned prosecution counsel Mr. Momanyi. He does not oppose the application save for prayer 5.
Prayer 5 was seeking quashing of the conviction entered by the trial court.
I agree that in order to challenge the conviction the subject ought to have filed a substantive appeal.
Turning to the application the subject was sentenced to a fine of 50000/= in default to 1 year’s imprisonment. Under section 28(2) of the Penal Code, the maximum default sentence for a fine of 50000/= is six months’ imprisonment. The sentence was therefore illegal.
The Applicant supplied the birth certificate showing that the subject was born in 2003. That means at the time of sentence, he was still a minor. Section 190(1) of the Children Act provides that no child shall be ordered to imprisonment or to be placed in a detention camp. The subject should not have been sentenced to a term of imprisonment in default of a fine or at all. The sentence flouted section 190(1) of the Children Act and was therefore ultra vires the law.
In the result I will set aside the sentence imposed against the subject and order his immediate release from prison unless he is otherwise lawfully withheld.
LESIIT, J
JUDGE
1/10/2020