C M Z v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII MISC. CRIMINAL APPLICATION NO. 16 OF 2016 C M Z………………….....……………..APPLICANT VERSUS REPUBLIC…………………….….RESPONDENT RULING 1. In the process of dealing with the applicant’s application dated 1 st March, 2016 for leave to file an appeal out of time this court’s attention was drawn to the fact that the applicant could be a minor, a fact which was not brought to the attention of the trial court at the time she was tried and convicted of the offence of child stealing contrary to Section 174 (1) (a) of the Penal Code. 2. This court therefore called for an age assessment report from Kisii Teaching and Referral Hospital which report has been filed today (31/3/2016). The report indicates that the applicant is a minor aged between 16 and 17 years. 3. It is the revelations contained in the age assessment report that has made this case take a whole new dimension with Mr. Otieno counsel for the state conceding that the trial before the lower court was a nullity as the applicant was tried and convicted as an adult after which she was jailed for 3 years. Mr. Otieno therefore suggested that the applicant should be taken back to the lower court for a retrial. 4. Mr. Obure for the applicant, on his part, vehemently opposed the proposal for a retrial while arguing that the minor’s constitutional rights had been grossly violated courtesy of a null trial and judgment that led her to be held in an adult’s prison for the last 4 months. 5. According to Mr. Obure, the minor applicant has been subjected to unconstitutional processes for which she has suffered greatly and therefore, her 4 months stay in an adult’s jail should be treated as sufficient punishment and as such she should not be subjected to any further court processes. 6. I have considered the rival submissions made by the learned counsels for the state and the applicant. It is conceded by both parties that the trial before the lower court was a nullity in view of the fact that the applicant herein was tried as an adult and sent to adult’s jail where she has been for the last 4 months. In view of the above circumstances, the fact that the applicant’s constitutional rights and rights guaranteed to her under the Children Act 2001 have been violated cannot be gain said. 7. The question that now begs this court an answer is if, under those circumstances, this court should order a retrial. I do not think so. 8. It is my humble view and I concur with the submissions of the applicant’s counsel that the minor has already suffered a grave injustice and that the period she has been in jail is sufficient punishment for, her

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