Rex v Kwesi (Criminal Appeal No. 140 of 1939) [1940] EACA 9 (1 January 1940)

## COURT OF APPEAL FOR EASTERN AFRICA

Before WHITLEY, C. J. (Uganda), WEBB, C. J. (Tanganyika) and BARTLEY, J. (Kenya)

REX. Respondent $\mathbf{v}$

KWESI s/o EKUTAN, Appellant Criminal Appeal No. 140 of 1939

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Death sentence—Infancy—Accused attained the age of 16 years in the interval between committing murder and his conviction and sentence therefor—Penal Code (Kenya), section 25(2).

Appellant committed a murder on 6th July, 1937, being then under sixteen years of age. He absconded immediately after the offence and was only brought to trial in May, 1939, when he was seventeen years of age and he was sentenced to death on 9th May, 1939.

Held (6-2-40).—That the material date is the date on which sentence is passed and not the date of the commission of the offence.

R. v. Fitt, 1919, 2 I. R. 35 applied.

Appeal dismissed.

Appellant absent, unrepresented. Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by WHITLEY, C. J.).—The evidence in this case amply supports the conviction and the only question which arises is whether in view of the age of the appellant it was lawful to sentence him to death. We are indebted to the Director of Medical Services for communicating to us the result of examination of the appellant by two of his officers and we accept their opinion that the appellant is now only 18 years of age. The offence was committed on the 6th July, 1937, so that on that date he would have been under the age of sixteen. He absconded immediately after the offence, and was only brought to trial in May, 1939. At the time he was sentenced to death, 9th May, 1939, he was according to the medical evidence seventeen years of age. Section 25(2) of the Penal Code provides that sentence of death shall not be pronounced on any person who in the opinion of the Court is under sixteen years of age. From the wording of this section it would appear that the material date is the date upon which sentence is passed and not the date of commission of the offence. This is the view taken by an Irish Court in the case of R. v. Fitt, 1919, 2 I. R. 35, when construing the Children Act, 1908, it being held that a person who at the time of trial is more than sixteen years old was not a "young person" within the meaning of section 131 of that Act though he was under sixteen at the time of the commission of the offence. (See also Mews Digest, 2nd Edition, Vol. 6, column 315, and Archbold, 30th Edition, page 249.) The present appellant is in the same position. He was under 16 when he committed the offence but over 16 when he was convicted and sentenced. We are accordingly of the opinion that the learned magistrate in extended jurisdiction properly passed sentence of death.

We would emphasize the importance of Courts dealing with juveniles of doubtful age recording to the best of their ability their opinion as to the age of the accused.

We dismiss the appeal but would draw attention to two elements which it may be thought proper to take into account in the appellant's favour, firstly his youth at the date of the offence and secondly the fact that it would appear that he had received considerable provocation which, though properly regarded by the Magistrate as not amounting to provocation in law, may yet have had a serious effect upon one so young.