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Court of AppealDismissedCriminal Appeal (unnumbered on copy)· [2011] KECA 22 (KLR)

JMK1 & another v Republic (Criminal Appeal 552 of 2010) [2011] KECA 22 (KLR)

Court of Appeal of Kenya
1 December 2011
PWP. N. WakiDAD. K. S. AganyanyaAVAlnashir Visram
2,321 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld detaining two teenagers at the President's pleasure for robbery, ruling the Penal Code sentence remains lawful despite the Children Act.

What this practically means

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Executive summary

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Two brothers aged 16 and 17 at the time of the offence were convicted of robbery with violence by the Murang'a Principal Magistrate's Court in 2006 and ordered detained at the President's pleasure under section 25(2) of the Penal Code, their ages having emerged only in mitigation. The High Court (Kasango and Makhandia, JJ) dismissed their appeal against conviction but failed to consider the challenge to the sentence. Before the Court of Appeal at Nyeri (Waki, Aganyanya and Visram, JJA) the appellants abandoned the conviction appeal and argued that the trial ought to have been conducted by a Children's Court under sections 2 and 73 of the Children Act, and that the sentence should have complied with section 191 of that Act, relying on the High Court decision in Koech & another v Republic where similarly placed minors were discharged. The Court held that the trial magistrate had jurisdiction under section 7 of the Criminal Procedure Code, and that the provisos to sections 73 and 185 of the Children Act confer a discretion to proceed even where a child offender is discovered mid-trial before a non-Children's Court. On sentence, the Court held that section 25(2) of the Penal Code remains lawful and is not overridden by the Children Act, being accommodated by the residual option in section 191(l) ('in any other lawful manner'). It expressly doubted and declined to follow Koech, noting that a High Court decision does not bind the Court of Appeal. The appeal was dismissed, conviction and sentence upheld, but the Court found the trial court had failed to comply with section 25(3) of the Penal Code (forwarding notes of evidence and a report to the President) and remitted the record to the High Court for full compliance within 14 days.

Key legal issues

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01

Whether absence of a gazetted Children's Court vitiates the trial of a child by an ordinary magistrate

Holding

It does not; the proviso to section 73 and section 185 of the Children Act preserve the court's discretion to proceed

Reasoning

The appellants' ages were disclosed only after all prosecution witnesses had been heard. The proviso to section 73 and the proviso to section 185 of the Children Act permit a court before which a child unexpectedly appears to continue with the hearing. There was no evidence the Chief Justice had gazetted the magistrate as a Children's Court, and the appellants did not challenge the magistrate's jurisdiction under section 7 of the Criminal Procedure Code.

p. 6
02

Legality of detention at the President's pleasure under section 25(2) of the Penal Code for child offenders

Holding

The sentence was lawful; the Children Act does not override section 25(2), and section 191(l) ('in any other lawful manner') accommodates it

Reasoning

Section 25(2) predates the Children Act and remains in force. The eleven options in section 191 culminate in the all-embracing paragraph (l) allowing any other lawful manner of dealing with a child offender. Detention at the President's pleasure therefore falls within that residual option and the sentence imposed on the appellants was lawful.

p. 6
03

Correctness of the Koech v Republic High Court decision

Holding

The Court doubted and declined to follow Koech, distinguishing it on its facts and questioning its reasoning under section 23 of the Interpretation and General Provisions Act

Reasoning

In Koech the offence, trial, conviction and sentence all preceded the Children Act; the High Court had nonetheless applied the Act at first appeal. The Court doubted that reasoning in light of section 23 of the Interpretation and General Provisions Act, Cap 2, and noted the court there ignored section 191(l). The authority was not binding on the Court of Appeal.

p. 7
04

High Court's failure to consider the appeal against sentence

Holding

The High Court erred in ignoring ground 7, but the remedy is remittal for compliance with section 25(3), not setting aside the sentence

Reasoning

The trial court had failed to comply with section 25(3) of the Penal Code, requiring the presiding judge to forward notes of evidence and a report with recommendations to the President. The High Court ought to have re-examined this on appeal. The Court of Appeal upheld the sentence but remitted the record for full compliance with section 25(3) within 14 days.

p. 7

Legal principles established

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  • A trial court before which a child offender's age transpires after commencement of proceedings has a discretion to proceed with the hearing and determination of the case; the trial is not a nullity
  • Detention at the President's pleasure under section 25(2) of the Penal Code is a lawful mode of dealing with a child offender and is not overridden by the Children Act, being accommodated by section 191(l)
  • Where a sentence of detention at the President's pleasure is imposed, the presiding judge must comply with section 25(3) of the Penal Code by forwarding the notes of evidence and a report to the President
  • A High Court decision is not binding on the Court of Appeal

Court orders

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  1. 1.Appeal by the appellants rejected
  2. 2.Conviction and sentence meted out by the trial court and upheld by the High Court upheld
  3. 3.Record remitted back to the High Court for full compliance with section 25(3) of the Penal Code without further delay
  4. 4.File to be placed before the High Court within 14 days of the judgment for directions

Authorities

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Legislation

  • Penal Codesection 296(2)
  • Penal Codesection 25(2)
  • Penal Codesection 25(3)
  • Children Act, No 8 of 2001section 2
  • Children Act, No 8 of 2001section 73
  • Children Act, No 8 of 2001section 185
  • Children Act, No 8 of 2001section 187
  • Children Act, No 8 of 2001section 190
  • Children Act, No 8 of 2001section 191
  • Criminal Procedure Codesection 7 and First Schedule
  • Criminal Procedure Codesection 361(1)(b)
  • Interpretation and General Provisions Act, Cap 2section 23

Cases cited (1)

  • Koech & another v Republic
    [2004] 2 KLR 322
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 361(1)(b) of the Criminal Procedure Code (second appeal on matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "JMK1 & another v Republic (Criminal Appeal 552 of 2010) [2011] KECA 22 (KLR)", Case Analysis (2011). Criminal Appeal (unnumbered on copy). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/22/eng@2011-12-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.