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Court of AppealPartially Allowed

DOO v Republic (Criminal Appeal 52 of 2015) [2019] KECA 416 (KLR)

Court of Appeal of Kenya
31 July 2019
3,261 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Otieno-Odek, JJA) partly allowed this first appeal by DOO, who had been convicted by the High Court at Homa Bay of the murder of MO committed on June 19, 2011, when the appellant was 15 years old. The trial judge, recognising that the death sentence could not be pronounced on a person under eighteen, sentenced the appellant to be detained during the President's pleasure under section 25(2) of the Penal Code. Before the hearing, the bench disclosed that one of its members had taken the appellant's plea while a High Court judge; the parties agreed recusal was unnecessary. At the hearing, the appellant abandoned the grounds challenging conviction and pursued only the challenge to sentence, invoking article 53(1)(f) of the Constitution and sections 190(2) and 191(1) of the Children Act and contending he should have been sent to a Borstal institution or, given his current age, sentenced to 10 years imprisonment. The respondent, relying on JMK v Republic, sought a minimum of 10 years. The court held that detention at the President's pleasure is not provided for in the Children Act, noted persuasive authority declaring such indeterminate detention unconstitutional as an abdication of judicial sentencing discretion to the executive, and followed its own precedents, including JMK v Republic and Richard Mwaura Njuguna. Holding that Borstal commitment was not foreseeable given the appellant's age, the court dismissed the appeal on conviction, allowed the appeal on sentence, set aside detention at the President's pleasure and substituted a sentence of 10 years imprisonment effective March 10, 2015.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the appeal on conviction should be pursued (abandoned by the appellant)
  3. 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

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01

Legality of detention at the President's pleasure for a child offender convicted of murder

Holding

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.

Reasoning

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.

p. 7
02

Scope of the appeal after abandonment of conviction grounds

Holding

With conviction grounds abandoned, the only issue for determination was the legality of the sentence imposed.

Reasoning

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.

p. 5
03

Recusal of a bench member who took the appellant's plea as a trial judge

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal on conviction dismissed
  2. 2.Appeal on sentence allowed; sentence of detention during the President's pleasure set aside
  3. 3.Substituted sentence of 10 years imprisonment effective March 10, 2015, the date of sentence by the trial court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 5

Commitment to a Borstal institution

The appellant is no longer a minor; Borstal commitment is not foreseeable given his current age

p. 7

Costs

No costs order made in the judgment.

Quotable passages

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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.
p. 7Disposition - partial allowance of appeal
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.
p. 7Final orders - substituted sentence
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.
p. 5Statutory basis of detention at the President's pleasure
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
p. 6Sentencing principles for child offenders

Issues in the judgment

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minor

The appeal number of this matter is not stated anywhere in the judgment text supplied.

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, "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.