Republic v J K W & D W K [2017] KEHC 2252 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CRIMINAL REVISION NO. 34 OF 2017

(From original Conviction and Sentence in Criminal Case No. 1334 of 2017 of the Chief Magistrate’s Court at Naivasha – V. Chianda, SRM)

REPUBLIC.......................................APPLICANT

-VERSUS-

J K W....................................1ST RESPONDENT

D W K...................................2ND RESPONDENT

IN CHAMBERS ON 7TH NOVEMBER, 2017

BEFORE HON. LADY JUSTICE C. MEOLI, J

RULING ON REVISION

1. The Subjects of this revision are J.K.W.(aged 17 years) and D.W.K.(aged 14 years).  Both Subjects were arraigned before the Chief Magistrate’s Court in Naivasha Criminal Case Number 1334 of 2014, on 2nd October, 2017.  They pleaded guilty to the main count facing them, that is, Stealing from the person contrary to Section 279 (a) of the Penal Code.

2. The particulars state that on the night of 28th September 2017 and 29th September 2017 at Site estate in Gilgil Sub-County within Nakuru County, jointly with another not before court, they stole a mobile phone make Kgtel valued at Kshs 5,000/= and Kenya Defence Force Service identification service card the property of Peter Mwangi Githuka.

3. The plea court noted that the 2nd Subject was a minor and called for a children officer’s report, while the 1st Subject was sentenced to 3 years imprisonment on 3rd October, 2017.  It appears from the record of the lower court that subsequently the plea court also realized that the 1st Subject could also be a minor.  An order for the assessment of his age was made, the results confirming the above stated ages of the Subjects.

4. Subsequent to the assessment of the Subjects’ age the matter was referred to this court for revision vide the Principal Magistrate’s letter dated 24th October, 2017.  On the said date, this court suspended the sentence in respect of the 1st Subject directing that both Subjects be held in a suitable place of custody pending their Probation Officer’s Reports and further orders.

5. The probation office has now furnished reports in respect of both Subjects which I have considered.  So far as the sentence meted out against the 1st Subject is concerned, it is illegal, in light of the age of the said Subject.  Section 190 (1) of the Children Act exempts minor offenders from punishment by imprisonment, while Section 191 of the Children Act provides a broad array of alternative methods of dealing with child offenders.

6. Thus the sentence meted out against 1st Subject cannot stand and is hereby set aside.  The Probation Officer’s report in respect of the two Subjects indicates that the two Subjects deserted their respective homes at an early age to live on the streets where they have engaged in deviant behaviour hence their present predicament.

7. Considering their respective backgrounds, I would agree with the probation officer that the Subjects require rehabilitation, which is not possible in the home environment.  Both Subjects may benefit from rehabilitation within an institution as opposed to their respective homes.

8. In the circumstances, I will order that consequent to the finding of guilt against them in the lower court, the 1st and 2nd Subjects be committed to Getathuru Reception Center and Shikutsa Borstal Institution, respectively.

Written and signed at Naivasha this 7thday ofNovember, 2017.

C. MEOLI

JUDGE