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Court of AppealPartially AllowedNot stated in the judgment· [2023] KECA 1403 (KLR)

Kiti v Republic (Criminal Appeal 14 of 2019) [2023] KECA 1403 (KLR)

Court of Appeal of Kenya
24 November 2023
HOHannah OkwenguHOH.A. OmondiJNJoel Ngugi
2,961 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal declared detention during the President's pleasure unconstitutional for child offenders and released an offender who had already served a substituted 10-year term.

What this practically means

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Executive summary

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The appellant, Suleiman Kibet Kiti, was convicted by the High Court of the murder of David Simon Naibei, an offence committed on 24th October 2015 at Koingit location, Mount Elgon District, during a confrontation at a mourning gathering in which the appellant stabbed the deceased, who died two days later. Because the appellant was 17 years old at the time of the offence, the trial court, invoking section 25(2) of the Penal Code, ordered that he be detained during the President's pleasure. He appealed against sentence only, arguing that an indeterminate sentence at Presidential discretion is unconstitutional, offending Article 53(1)(f) of the Constitution and international child-rights instruments, and that sentencing is a judicial, not executive, function. The State conceded that the trial court had considered his minority but contended that the court had discretion to sentence in any other lawful manner. The Court of Appeal held that the jurisprudence on detention at the President's pleasure is settled and that such a sentence is unconstitutional, consistent with its earlier decisions in A.W.M v Republic and A.O.O & 6 Others v Attorney General. Addressing the dilemma of a child offender who transits into adulthood before conviction, the Court held such offenders cannot be released without accountability, but must not be treated as adults; where the Children Act options are unavailable, a determinate custodial sentence may be imposed as the measure of last resort under Article 53(2). The Court set aside the unconstitutional sentence and substituted a 10-year prison term running from the date of arrest in October 2015, which the appellant had already served.

Key legal issues

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01

Constitutionality of detention during the President's pleasure under section 25(2) of the Penal Code

Holding

The sentence is unconstitutional because it offends Article 53(1)(f) of the Constitution, which permits detention of a child only as a last resort and for the shortest appropriate period of time.

Reasoning

The Court recalled its own precedents (A.W.M v Republic; A.O.O & 6 Others v Attorney General) which had already found section 25(2) inconsistent with Article 53(1)(f) of the Constitution. An indeterminate sentence at the President's pleasure is undefined in duration and conditions, fails the best-interests-of-the-child standard in Article 53(2), and cannot be reconciled with the constitutional guarantee that a child's detention be a last resort and for the shortest appropriate period. The sentence imposed on the appellant therefore fell to be set aside.

p. 5
02

Appropriate sentence for a child offender who becomes an adult before conviction

Holding

Where the Children Act sentencing options are unavailable because the offender has transitioned to adulthood, the court may impose a determinate prison term as the measure of last resort under Article 53(2), taking account of time served.

Reasoning

The Court reasoned that the unconstitutionality of section 25(2) does not leave the court helpless: a child who commits a serious crime and transits into adulthood at conviction must not be released without accountability, yet must not be treated as an adult. The objectives of sentencing, including correction and rehabilitation and the best interests of the child, must be preserved. Applying the judicious approach in J.M.K. v Republic, the Court substituted a fixed 10-year term running from the date of arrest, which the appellant had already served.

p. 6

Legal principles established

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  • The sentence of detention during the President's pleasure under section 25(2) of the Penal Code is unconstitutional as applied to child offenders, and lower courts may not impose it.
  • Where a child offender who commits a serious offence has transitioned into adulthood at conviction, and no statutory child-sentencing option applies, the court may impose a determinate custodial sentence as the measure of last resort under Article 53 of the Constitution; such offenders cannot walk free simply because no child penalty fits.

Court orders

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  1. 1.The sentence of detention during the President's pleasure imposed under section 25(2) of the Penal Code is set aside as unconstitutional.
  2. 2.The sentence is substituted with a prison term of 10 years, running from the date of the appellant's arrest in October 2015, which translates to the term already served.

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesection 25(2)
  • Penal Codesection 35(1)
  • Children Act (repealed)section 190(1); section 190(2); section 191
  • Constitution of KenyaArticle 53(1)(f); Article 53(2); Article 260
  • Probation of Offenders ActCap 64
  • Judiciary of Kenya Sentencing Policy GuidelinesParagraph 4.1 (2016)
  • UN Convention on the Rights of the ChildArticle 37(c)
  • African Charter on the Rights and Welfare of a ChildArticle 2(b)
  • United Nations Rules for the Protection of Juveniles Deprived of their Libertyparagraph 1

Cases cited (6)

  • J. M. K. v Republic
    [2015] eKLR
  • J.K.K v R
    [2013] eKLR
  • Republic – v – S.A.O., (a minor)
    [2004] eKLR
  • Dennis Kirui Cheruiyot – v – R
    Nyeri Criminal Appeal No. 184 of 2009
  • A.W.M v Republic
    [2009] eKLR
  • A.O.O & 6 Others v Attorney General & Another
    [2017] eKLR
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over conviction/sentence under the Criminal Procedure Code (appeal against sentence from a High Court murder conviction); no specific provision cited in the judgment.

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, "Kiti v Republic (Criminal Appeal 14 of 2019) [2023] KECA 1403 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1403/eng@2023-11-24

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