High Court 16235 of 2025

who appears to be under the age of eighteen years be ascertained before the commencement of proceedings.” 5. The applicant also contends that the trial court did not adequately advise him on the implication of pleading guilty as required by law and failed to ensure that he fully understood the nature and consequences of his plea, particularly given his tender age, illiteracy and lack of legal representation. Reliance was placed in the case of Anthony Njeru Kathanju v Republic (2019) eKLR where the court observed that: “ Where the accused is a child, the duty to ensure that he understands the charges and the implications of guilty plea is even higher. The court must take extra caution to ensure that the child’s rights under Article 50 of the Constitution and the Children Act are protected.” 6. The Applicant contends that he was involved in a romantic relationship with the complainant who was at the time aged 16 years, with their age difference being 1.5 years. He referred to the case of C0I v Republic (2018) eKLR, where the court recognized the reality of adolescent romantic relationship and stated that: “ In cases involving adolescents in romantic relationships with relatively small age differences (commonly referred to as “Romeo and Juliet” cases), courts should exercise judicial discretion in sentencing to avoid disproportionate punishment that does not serve the ends of justice.” 7. He also cited MCM v Republic (2020) eKLR where the High Court noted that: “ The Sexual Offences Act was not intended to criminalize consensual sexual activity between teenagers or young persons in a romantic relationship with minimal age difference. Courts must be alive to this reality and consider the specific circumstances of each case.” 8. The applicant states that his relationship with the complainant resulted to the birth of a child whom he is willing to support and take responsibility. 9. The Applicant further states that the sentence imposed on him was disproportionally harsh for a juvenile offender in what essentially constitutes a “Romeo and Juliet” scenario. He referred to CKW v Republic (2014) eKLR where the court held that; “ When sentencing juvenile offenders, courts must be guided by the principle that detention should be a measure of last resort for the shortest appropriate period of time, as enshrined in Article 53(1)(f) of the Constitution and international instruments.” 10. He contended that being a juvenile at the time of conviction, he was incarcerated with adult offenders contrary to Article 53(1)(f) of the Constitution of Kenya which required a child where detained to be held separately from adults. 11. The Applicant further states that he has elderly parents who depended on him for support before his incarceration and their welfare has deteriorated in his absence. 12. In view of the foregoing, the Applicant urged the court to release him from custody or substitute the sentence with a non-custodial sentence under community service orders or order that the period served is sufficient punishment for the offence committed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16235/eng@2025-09-29 2

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13. I have considered the Application and arguments by the Applicant. The gist of his application is that he was at the time of sentence aged below the age of 18 years. That no age assessment was conducted at the time that he was sentenced so as to verify his age. The applicant has however not filed any document to show that he was under age at the time that he was sentenced. He never told the court that he was under age when he took plea. 14. More so, the Applicant has not explained why he stayed for a period of 4 years before filing the application alleging that he was under age at the time that he was sentenced. The court cannot order an age assessment to be conducted now as it cannot show the age of the Applicant at the time of sentence. 15. The Applicant argues that the complainant was aged 16 years at the time of plea. However, the charge was that the complainant was at the time aged 13 years. A birth certificate was produced during plea taking that showed that she was aged 13 years. The Applicant did not dispute that at the time of taking plea. The age of the complainant cannot be the subject of review application unless the Applicant has concrete evidence by way of documentation that her age was not as stated in the charge sheet and in the birth certificate. 16. The Applicant alleges that he was he was not adequately informed of the implications of pleading guilty. However, this is not true as the court record indicates that he was informed of the gravity of the offence and the implication of plea of guilty. He proceeded to admit the charge. I do not find any substance in this allegation. 17. The Applicant was sentenced to the minimum sentence provided under Section 8(3) of the Sexual Offences Act for defiling a child aged 13 years. The sentence is lawful. 18. In view of the foregoing, I do not find any merit in the application and the same is thereby dismissed. DELIVERED, DATED AND ISSUED AT GARSEN THIS 29TH DAY OF SEPTEMBER 2025. J. N. NJAGI JUDGE In the presence of: Ms Mkongo for Respondent Petitioner: Present at Shimo la Tewa GK Prison Court Assistant - Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16235/eng@2025-09-29 3

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