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|Case Number:||Criminal Appeal 552 of 2010|
|Parties:||J. M.K & another v REPUBLIC|
|Date Delivered:||01 Dec 2011|
|Court:||Court of Appeal at Nyeri|
|Judge(s):||Daniel Kennedy Sultani Aganyanya, Alnashir Ramazanali Magan Visram, Philip Nyamu Waki|
|Citation:||J. M.K & another v REPUBLIC  eKLR|
|Case History:||(An appeal from the Judgment of the High Court of Kenya at Nyeri (Kasango & Makhandia, JJ) dated 30th January, 2009 in H. C. CR. A. No. 152 of 2006 & 249 of 2008)|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
The prosecution said nothing in respect of those submissions and the trial Magistrate did not doubt the stated age. He stated thus:
“I have considered the accused persons mitigation. I have also considered the offence that the accused persons are charged with (sic) carries a mandatory death sentence. However, the accused persons who were minors at the time when the offence was committed and are still minors are protected by law and hence the death sentence cannot be pronounced on them.
The appellants appealed to the High Court against both conviction and sentence and among the grounds listed in their memorandum of appeal was No. 7 stating:
“Your Lordship, the sentence of presidential pressure (sic) is exercise (sic) and harsh, therefore kindly request this honourable high (sic) court to consider my few grounds quash the sentence and set it aside.”
The High Court (Kasango and Makhandia, JJ) dismissed their appeal against conviction but said nothing about the sentence. The appellants have therefore been held in custody at the President’s pleasure under section 25 (2) of the Penal Code since 18th July, 2006.
In this second, and probably final appeal, they had sought to challenge both the conviction and sentence but learned counsel for them, Mr. S. K. Njuguna, informed us that the appeal against conviction was abandoned. He sought to urge the following grounds listed in a supplementary memorandum of appeal:
In responding to the legal issue, Mr. Kaigai, learned State Counsel, submitted that the trial and sentence imposed on the appellants were lawful and correct. Section 191 of the Act, in his view, was permissive and there was provision thereunder authorizing legal custody of minors under the President’s pleasure. At all events, Mr. Kaigai submitted, the provisions of the Act did not override other Statutes, and where there was no gazetted Children’s Court in the country, any Magistrate upon whom jurisdiction is conferred under the Criminal Procedure Code may try the case. The only omission by the trial court which the High Court failed to rectify, he submitted, was the full application of section 25 (3) of the Penal Code and therefore this Court may remit the record back to High Court for compliance.
We have anxiously considered the issues of law raised in this matter but in the end, we find no impropriety in the application of section 25 (2) of the Penal Code, save for the omission to apply section 25 (3) thereof.
Section 73 under Part VI of the Children Act provides in relevant part as follows:
“73. There shall be courts to be known as Children’s Courts constituted in accordance with the provisions of this section for the purpose of –
There is, however, a proviso to that section providing in relevant parts thus:
“(i) reference to subordinate courts of any class, in the First Schedule to the Criminal Procedure Code, shall include a Children’s Court;
So that, in our view, even where a case is erroneously commenced before a trial court and it transpires at some stage that it was indeed before the wrong court, there is a discretion on the trial court to proceed with the trial. That construction is strengthened by the provisions of section 185 of the Children Act which donates the power to remit cases to Children’s Courts. It provides as follows:
“Subject to any rules or directions made or issued by the Chief Justice, where it appears to a court, other than a Children’s Court, at any stage of the proceedings that a child is charged before it with an offence other than murder and is not charged together with a person or persons of or above the age of eighteen years, the court may, and where within the area of a subordinate court’s jurisdiction there is established a Children’s Court having jurisdiction, the subordinate court shall, remit the case to a Children’s Court:
The proviso to the section applies in this matter where all the prosecution witnesses had been heard and the case was closed before the ages of the appellants were disclosed. We find no impropriety by the trial Magistrate in proceeding with the trial and determining the case. The only issue, therefore, is whether the sentence imposed on the appellants was lawful.
We think it was. In saying so, we allude to section 191 of the Children Act which provides several methods of dealing with child offenders. The options listed under the section are eleven [(a) to (k)], but there is a final provision (l) which is all embracing stating thus:
(l) In any other lawful manner.”
Section 25 (2) of the Penal Code is still a lawful provision of the law and was in existence before the enactment of the Children Act. No provision on the Children Act overrides that section. It provides as follows:
“(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 President’s 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.”
As stated earlier, there was nothing unlawful about placing the appellants under the legal custody of the President. It is 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 which provides as follows:
“(3) When a person has been sentenced to be detained during the President’s 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 on observations on the case he may think fit to make.”
For the reasons stated above, we reject the appeal by the appellants. We uphold the conviction and sentence meted out by the trial court and upheld by the High Court. We order that the record be remitted back to the High Court for full compliance with section 25 (3) aforesaid without further delay. The file shall be placed before that Court within 14 days of this judgment for directions. We so order.
Dated and delivered at Nyeri this 1st day of December, 2011.
P. N. WAKI
D. K. S. AGANYANYA