[1938] EACA 156

# **CRIMINAL REVISION**

BEFORE SIR JOSEPH SHERIDAN, C. J., AND THACKER, J.

### REX, Prosecutor

v

## KEYA s/o KIBAI. Accused

# Criminal Revision Case No. 153 of 1938

Criminal Law-Sentence-Punishment of juvenile offenders-Penal Code, section 27 (3)—Juveniles Ordinance, 1934, sections 12 (3) and 16-Townships General Rules (Cap. 82) r. 189 (2).

Accused a juvenile aged $14\frac{1}{2}$ to 15 years was convicted of an offence contrary to rule 189 (2) of the Townships General Rules for which the penalty is "a fine not exceeding four pounds and in default<br>of payment .................................... exceeding four weeks". The accused was sentenced to be beaten three strokes with a light cane.

Held $(12-1-39)$ .—(1) That unless the case comes within section 27 (3) of the Penal Code or corporal punishment is authorized by some other provision of law, young persons dealt with under the Juveniles Ordinance cannot be sentenced to that form of punishment.

(2) That a sentence of corporal punishment will not be valid under section 27 (3) of the Penal Code unless the offence is such that the offender was liable to substantive imprisonment in respect of it.

(3) That the provisions of section 16 (1) of the Juveniles Ordinance, 1934, are directory only and not in themselves authority for the award of any particular kind of punishment.

#### Dennison, Crown Counsel, for the Crown.

Accused, absent, unrepresented.

JUDGMENT.—The accused a juvenile of from 14¹ to 15 years was convicted before the Resident Magistrate, Kisumu, of the offence that he did "throw a stone at an Arab's house contrary to Rule 189 (2) of the Townships General Rules (Cap. 82 Laws of Kenya)". The penalty for this offence is "a fine not exceeding four pounds, or in default of payment ... with imprisonment of either kind for a period not exceeding four weeks". The learned magistrate sentenced the accused to "three strokes with a light cane". The authority under which this punishment was imposed is not quoted. It has been conceded by Crown Counsel that unless the provisions of the Rule creating the offence or section 27 (3) Penal Code or section 16 Juveniles Ordinance (Ord. 22 of 1934) can be invoked the sentence is invalid. The provisions of the Rule which we have sufficiently referred to will show at once that corporal punishment is not authorized thereunder. Section 27 (3) Penal Code provides: —

"Whenever a male person under the age of sixteen years is convicted of any offence for which he is liable to imprisonment. the Court may, in its discretion, sentence him to corporal punishment in addition to or in substitution for any other punishment to which he is liable.

Provided that no sentence of corporal punishment may be imposed in default of payment of a fine."

Our interpretation of this provision is that before corporal punishment can be awarded under it, the offender must be liable to substantive imprisonment. In the case under consideration he can only be imprisoned in default of payment of fine and so the section is not an authority for the award of corporal punishment. It remains for us to consider whether section 16 of the Juveniles Ordinance is an authority in itself for the award of corporal punishment. The section enacts: -

"16. (1) Where a child or young person charged with any offence is tried by any court, and the court is satisfied of his guilt, the court shall take into consideration the manner in which, under the provisions of this or any other Ordinance or otherwise enabling the court to deal with the case, the case should be dealt with, namely, whether-

- (a) by dismissing the charge; or $(a)$ - (b) by discharging the offender on his entering into recognizance: or - (c) by so discharging the offender and placing him under the supervision of a probation officer; or - (d) by committing the offender to the care of a relative or other fit person; or - (e) by sending the offender to an approved school; or - $(f)$ by ordering the offender to be whipped; or - $(g)$ by ordering the offender to pay a fine, damages, or costs; $\overline{or}$ - $(h)$ by ordering the parent or guardian of the offender to pay a fine, damages, or costs; or - (i) by ordering the parent or guardian of the offender to give security for his good behaviour; or - (j) by committing the offender to custody in a remand home; $\overline{or}$ - $(k)$ where the offender is a young person, by sentencing him to imprisonment; $\alpha$ r - $(l)$ by dealing with the case in any other manner in which it may be legally dealt with.

(2) Nothing in this section shall be construed as authorizing the court to deal with any case in any manner in which it could not deal with the case apart from this section."

The difficult part of the section to construe is $16(2)$ but in construing it we are assisted by the knowledge that its construction was considered by three Judges of this Court (Sheridan, C. J., Webb, J. and Lane, Ag. J.) in connexion with cases sent to the Court for inspection and as a result of their consideration and after hearing the submission of the learned Attorney General the following circular was issued: $\rightarrow$

"As there would appear to be some misapprehension on the part of magistrates as to the effect of sections 12 (3) and 16 (f) of the Juveniles Ordinance, 1934, regarding the award of corporal punishment in the case of young persons, I am directed by His Honour the Chief Justice to state that these sections are not an authority for the imposition of a sentence of corporal punishment. Section 12 (3) in referring to corporal punishment as a suitable method inter alia of dealing with young persons must be taken to apply only to such cases as may be dealt with by corporal punishment in accordance with a provision of law, for instance under sections 27 (3) or 229 of the Penal Code. 16 $(2)$ of the Juveniles Ordinance providing that Section 'Nothing in this section shall be construed as authorizing the court to deal with any case in any manner in which it could not deal with the case apart from this section' is so clear as to need no explanation.

In short the position is that unless the case comes within section 27 (3) of the Penal Code or corporal punishment is authorized by some other provision of law, young persons dealt with under the Juveniles Ordinance cannot be sentenced to that form of punishment."

The Attorney General's submission in connexion with this circular was: "I have no comment to make on the proposed circular which would appear to set out the position with the utmost clarity". In these circumstances we feel bound to hold that section 16 of the Juveniles Ordinance is not in itself an authority for the award of corporal punishment and that the meaning of sub-section (2) is that provided that any of the punishments set out in sub-section (1) is a competent legal punishment the court may choose as between the different punishments set out in sub-section (1) that which it considers most appropriate. An examination of the different punishments in section 16 $(1)$ convinces us that the interpretation to which we have referred is correct. To take one or two of these: For instance (b) "by discharging the offender on his entering into a recognizance". The authority for making such an order is to be found in section 11 (2) of the Ordinance which specifically excludes the offences of murder and manslaughter when enacting that a child or young person may be discharged on his entering into recognizance. This exclusion is a sure indication that section 16 is not by itself an authority for that form of punishment. Then $(k)$ reads: "Where the offender is a young person, by sentencing him to imprisonment". Were this to be construed as an authority for sending a young person to prison in the discretion of the court it would have the alarming consequence in the present case that though the Townships Rule in question gives an accused person the option of paying a fine, a court would disregard the express words of the Rule in the case of a iuvenile and send him to prison without giving him the option. Another indication is contained in (1) which states: "By dealing with the case in any other manner in which it may be legally dealt with". In other words section 16 is of a directory nature as to the punishments to be taken into consideration in the case of a child or young person and thereafter you must ensure that the particular form of punishment awarded for the particular offence is sanctioned by law.

For the reasons we have stated the sentence of corporal punishment in the case before us is quashed.