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Court of AppealAllowedCriminal Appeal 192 of 2018· [2024] KECA 453 (KLR)

Sj Alias S v Republic

Court of Appeal
12 April 2024
HOHannah OkwenguHOH.A. OmondiJNJoel Ngugi
1,020 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man convicted as a child, ruling indefinite detention at the President's pleasure is unconstitutional.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJA) delivered reserved reasons for its decision of 25th October 2023 allowing this appeal and directing the appellant's release. The appellant had been convicted of robbery with violence in Busia Criminal Case No. 425 of 2002 and sentenced to death in December 2005. During the trial he claimed to be 16 years old; the trial court ordered an age assessment that was never carried out. His first appeal to the High Court failed, but on second appeal this Court set aside the death sentence and substituted detention at the President's pleasure. He then petitioned the High Court (Tuiyott, J), which dismissed his petition on 16th November 2015 (the judgment also records 15th November 2015), leading to this appeal. Counsel relied on Article 53 of the Constitution and AOO & 6 Others v AG, where Mativo, J declared indefinite detention at the President's pleasure contrary to the separation of powers. The respondent argued the appellant had not exhausted the power-of-mercy process under Article 133(1) and that the age issue had already been addressed. The Court was satisfied, on a belated age assessment, that the appellant was 16 at conviction, making him a child. It held that detention at the President's pleasure, being indeterminate, was inconsistent with the Constitution and violated his rights, agreed with the cited superior court authority, reversed its earlier order, and directed his release forthwith unless otherwise lawfully held, noting his over 15 years in detention.

Key legal issues

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01

Appellant's age at conviction

Holding

The appellant was under 18, a child, when convicted and sentenced.

Reasoning

The appellant had raised his age at trial and an age assessment was ordered but never carried out. A later assessment by Dr. Patson Kubuta confirmed he was 16 as at 13th December 2005. The Court was thus satisfied he was a child at conviction and sentence.

p. 2
02

Constitutionality of detention at the President's pleasure

Holding

Detention at the President's pleasure is an unconstitutional indeterminate sentence for a child offender.

Reasoning

The Court endorsed superior court authority, notably AOO & 6 Others v AG, holding that indefinite detention at the President's pleasure offends the separation of powers. Applied to a person convicted as a child, it violated his constitutional rights.

p. 2

Legal principles established

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  • An order for detention of a child offender at the pleasure of the President is an indeterminate term that is inconsistent with the Constitution and violates the child's constitutional rights.
  • Where a trial court is put on notice of a possible issue as to an accused's age, an order for age assessment must be acted upon before trial and sentence proceed.

Court orders

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  1. 1.Appeal allowed
  2. 2.Previous order of the Court for detention of the appellant at the President's pleasure reversed
  3. 3.Appellant released forthwith unless otherwise lawfully held
On appeal from
High Court of Kenya at Busia
Constitutional Petition No. 5 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a constitutional petition (Criminal Appeal 192 of 2018)

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, "Sj Alias S v Republic", Case Analysis (2024). Criminal Appeal 192 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/453/eng@2024-04-12

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