Republic v A.K.G [2015] KEHC 7681 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.208 OF 2015

REPUBLIC…………………………………………………......... APPLICANT

VERSUS

A K G…………………………………………….……………..RESPONDENT

RULING

The Respondent herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. When the Respondent was arraigned before the court, it was realized that he was a child within the meaning of Section 2 of the Children Act. This was after the court had confirmed, on age assessment, that indeed the Respondent was 17 years at the time plea was being taken. He was therefore under the age of 18 years. The case was referred to the Children’s Court for hearing and determination. Hearing commenced before the Children’s Court (Z. W. Gichana – RM) on 18th July 2014. So far, five prosecution witnesses have testified. On 11th September 2015, the said court made the following Ruling:

“I have noted that in this matter the subject is charged with robbery with violence. This (court) being a Resident Magistrate’s Court it has no jurisdiction.  I therefore direct that the matter be placed before Hon. Gitari – CM for directions.”

The file has been forwarded to this court for appropriate orders to be issued on revision. With greatest respect to the Learned Magistrate, the order issued above is a misdirection. Section 73 of the Children Act sets out the jurisdiction of the Children’s Court. Under Section 73(b) of the Act, the Children’s Court has jurisdiction to hear:

“…any charge against a child, other than a charge of murder or charge in which the child is charged together with a person or persons of or above the age eighteen years.”

It is clear from the above section that the Children’s Court has jurisdiction to try all criminal cases facing children except children charged with murder or children charged in the same case with adults. It is the status of the child that determines the jurisdiction of the Children’s Court. The Respondent in this case has been charged with an offence which does not fall within the exception anticipated under Section 73(b) of the Children Act. In the premises therefore, it is clear that the trial court has jurisdiction to continue hearing the case to its conclusion.

The case is therefore remitted back to the Children’s Court (Z.W. Gichana –RM) to hear the case to its conclusion. The court has jurisdiction to hear the case.

DATED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2015

L. KIMARU

JUDGE