DOO v Republic (Criminal Appeal 52 of 2015) [2019] KECA 416 (KLR)
The bottom line
#Kenya's Court of Appeal replaced an indefinite 'detention at the President's pleasure' sentence on a man convicted of murder as a teenager with a fixed 10-year term.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a judge who took the appellant's plea of not guilty while a High Court judge needed to recuse himself from the appellate bench
- 2.Whether the appeal on conviction should be pursued (abandoned by the appellant)
- 3.Whether the sentence of detention during the President's pleasure imposed on a minor convicted of murder was legal and appropriate
Key legal issues
#Legality of detention at the President's pleasure for a child offender convicted of murder
The sentence, though prescribed by section 25(2) of the Penal Code for minors facing capital offences, is inappropriate as an ultimate disposition; a determinate custodial sentence of 10 years should be imposed where the offender has attained majority.
The court noted Mativo J's persuasive decision in AOO & 6 others v Attorney General declaring detention at the President's pleasure unconstitutional as an indeterminate sentence subject to executive whim, abdicating judicial sentencing discretion. Following its own precedents in JMK v Republic and Richard Mwaura Njuguna, the court held that although the offender can no longer be committed to a Borstal institution, a fixed custodial term serves proportionality and rehabilitation, substituting 10 years imprisonment running from the trial court's sentencing date.
Scope of the appeal after abandonment of conviction grounds
With conviction grounds abandoned, the only issue for determination was the legality of the sentence imposed.
The appellant expressly abandoned grounds 1, 2 and 3 relating to conviction and pursued only ground 4 on sentence, relying on article 53(1)(f) of the Constitution and sections 190(2) and 191(1) of the Children Act. The respondent, relying on JMK v Republic, sought a minimum of 10 years imprisonment. The court accordingly confined itself to sentence.
Recusal of a bench member who took the appellant's plea as a trial judge
A judge who only took a plea of not guilty and did not participate in the trial need not recuse himself from hearing the appeal, and the parties so consented.
Before the hearing, the court raised the fact that a bench member had taken the appellant's plea while a High Court judge at Kisii. The parties agreed that because the judge only took the plea of not guilty and never participated in the hearing, recusal was unnecessary, and the appeal proceeded on that basis.
Legal principles established
#- The Children Act does not provide for detention at the President's pleasure; that sentence is found only in the Penal Code and applies where the offence committed by the minor is punishable by death.
- In sentencing a child offender the court must give effect to the best interests of the child and consider proportionality, deterrence and rehabilitation.
- Where a minor convicted of murder has attained majority, a determinate custodial term of 10 years is an appropriate substitution for detention at the President's pleasure.
Court orders
#- 1.Appeal on conviction dismissed
- 2.Appeal on sentence allowed; sentence of detention during the President's pleasure set aside
- 3.Substituted sentence of 10 years imprisonment effective March 10, 2015, the date of sentence by the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Homa Bay
- Jurisdiction invoked
- First appeal to the Court of Appeal against conviction and sentence in a murder trial (Article 164 of the Constitution; Criminal Appeal jurisdiction)
Relief refused
#Appeal against conviction (grounds 1, 2 and 3 abandoned)
The appellant abandoned the appeal on conviction and elected to pursue only the appeal on sentence
Commitment to a Borstal institution
The appellant is no longer a minor; Borstal commitment is not foreseeable given his current age
Costs
No costs order made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that we partially allow the appeal. The appeal on conviction is dismissed but on sentence the same is allowed.
We set aside the sentence of detaining the appellant during the President's pleasure and in its place we impose a sentence of 10 years imprisonment with efiect from March 10, 2015 when he was sentenced by the trial court.
The Children Act does not provide for sentence of detention at the President's pleasure, such sentence is only found in section 25(2) and (3) of the Penal Code.
the court gives efiect to the best interests of the child as required under section 4(2) of the Children Act. The court should also bear in mind the principles of proportionality, deterrence and rehabilitation
Issues in the judgment
#The appeal number of this matter is not stated anywhere in the judgment text supplied.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DOO v Republic (Criminal Appeal 52 of 2015) [2019] KECA 416 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/416/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.