The Children Act does not override section 25(2) of the Penal Code which provides for the detaining of a minor at the Presidents pleasure in lieu of a death sentence

Brief facts

The appellants were charged before trial court on two counts of robbery with violence. The charge sheet stated that the apparent age for each of them was adult. After hearing four prosecution witnesses and the two appellants, the trial court found as proved beyond doubt, that the two of them on the June 22, 2005 at Kahuti, in Murang'a, jointly with others not before court, robbed three different people of their property after breaking into their houses and caused actual bodily harm on them. At the time of presenting their defences, and in their mitigation after conviction, the appellants disclosed that they were aged 16 and 17 years respectively. The trial court did not doubt the stated age and ordered that they be detained in prison at the President's pleasure under section 25 (2) of the Penal Code.

The appellants appealed to the High Court against both conviction and sentence. The High Court dismissed their appeal against conviction but said nothing about the sentence. The appellants had therefore been held in custody at the President's pleasure since July 18, 2006. In the instant appeal, they had sought to challenge both the conviction and sentence but their counsel informed the court that they had abandoned the appeal against conviction. The appellants argued that the High Court erred in failing to appreciate that as both accused were minors, their case ought to have heard by a children's court. They further argued that the High Court erred in failing to come to the conclusion that section 25(2) and (3) of the Penal Code was inconsistent with section 191 of the Children Act and thereby apply the Children Act.

Issues

1. Whether provisions of the Children Act could override section 25(2) of the Penal Code which provided for the sentencing of a minor to be detained at the Presidents pleasure in lieu of a death sentence. 
2. Whether a trial court, which was not a gazetted childrens court, could proceed with the trial of minors in a criminal case where the minors age was not stated at the time of trial. 
3. Whether the Children Act was applicable to an offence committed by a minor before its enactment where an appeal was instituted after the Act had come into force. 

Relevant provisions of the law

Penal Code, Cap 63

Section 25 - Sentence of death

(2) * 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 Presidents 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.

*Power delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for Prisons (L.N. 579/1963).

(3) When a person has been sentenced to be detained during the Presidents pleasure under subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make.

Held

1. There was no impropriety in the application of section 25(2) of the Penal Code, save for the omission to apply section 25(3) thereof. The appellants were children as defined under section 2 of the Children Act which was operational when the offence was committed. Their apparent ages in the charge sheet were stated as adult and there was no disclosure of their real ages until they presented their defences and in mitigation before sentence. On the face of it therefore the trial court had jurisdiction under section 7 of the Criminal Procedure Code as read with  the First Schedule thereunder. There was no evidence that the Chief Justice had in accordance with section 73 gazetted the trial court as a children's court and the appellants were right in not challenging his jurisdiction.
2. Even where a case was erroneously commenced before a trial court and it transpired at some stage that it was indeed before the wrong court, there was a discretion on the trial court to proceed with the trial. That construction was strengthened by the provisions of section 185 of the Children Act which donated the power to remit cases to children's courts. The proviso to the section applied in the instant matter where all the prosecution witnesses had been heard and the case was closed before the ages of the appellants were disclosed. There was no impropriety by the trial court in proceeding with the trial and determining the case. 
3. Section 191 of the Children Act provided several methods of dealing with child offenders. The options listed under the section were eleven [(a) to (k)], but there was a final provision (l) which was all embracing. Section 25(2) of the Penal Code was still a lawful provision of the law and was in existence before the enactment of the Children Act. No provision on the Children Act overrode that section.
4. The High Court in Koech & Another v Republic [2004] 2 KLR 322 found that the offence was committed before the enactment of the Children Act and that the trial, conviction and sentence of the appellants also preceded the Act. The court, however, reasoned that since the first appeal came before the court after commencement of the Children Act, then the Act should apply to determine the sentence of the appellants. The court doubted the correctness of that finding in view of section 23 of the Interpretation and General Provisions Act, Cap 2, Laws of Kenya. The court also applied one of the options provided under section 191 of the Children Act but said nothing about provision (l).The court doubted that the reasoning of the High Court was sound in law. At all events the authority cited was not binding on the instant court and it did not follow it. 
5. There was nothing unlawful about placing the appellants under the legal custody of the President. It was an order which the High Court ought to have re-examined as it was expressly placed before it as a ground of appeal but it said nothing about it. The court fell in error in failing to do so. If it had done so it would have noted that the trial court did not comply with section 25(3) of the Penal Code.