Nyanga v Republic [2024] KEHC 9425 (KLR)

Nyanga v Republic (Miscellaneous Criminal Revision E116 of 2004) [2024] KEHC 9425 (KLR) (23 July 2024) (Ruling)

Neutral citation: [2024] KEHC 9425 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Revision E116 of 2004

MS Shariff, J

July 23, 2024

Between

Sarah Nyanga

Applicant

and

Republic

Respondent

Ruling

1. I have perused the trial file namely Nyando SPM Criminal Case No. 456 of 2024: Republic –versus- Sarah Nyanga & Moses Matete and do note that indeed the copy of certificate of birth No. A1855154 dated 4. 4.2019 reveals that the 1st Accused person was born on 15. 2.2007 wherefore she is a minor aged 17 years and 5 months. The trial court thus erred in meting a custodial sentence of 20 years against the accused.

2. In light of the said error and regard being heard of the provisions of Sections 238 of the Children Act 2022 the 1st accused person ought not to have been given a custodial sentence. This court takes cognizance of the fact that the 1st accused committed a heinous offence but it should not escape the mind of the court that the 1st accused was she herself being defiled by the 2nd accused given that she was herself a minor and incapable of engaging in consensual sexual intercourse. This was one minor whom the 2nd accused had assigned the role of parenting another minor.

3. In exercise of the revisionary jurisdiction as clothed in this court by the provisions of article 165 (6) and (7) of the Constitution of Kenya 2010 I do hereby set aside the sentence of the 1st accused person.

4. I direct that a probation officer Kisumu do file a social inquiry report in respect of the 1st accused within 7 days from the date hereof.

5. In the interim I order that the 1st accused be placed in Kisumu Children’s Remand Home as she awaits sentencing.

6. Mention on 30. 7.2024.

DATED, SIGNED AND DELIVERED THIS 23RDDAY OF JULY, 2024. M. S. SHARIFFJUDGE