Rex v Ndunga (Criminal Revision Case No. 248 of 1943) [1943] EACA 70 (1 January 1943)

## CRIMINAL REVISION

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX. Prosecutor

$\overline{\nu}$ .

## MWEKE s/o NDUNGA, young person aged 15 years, Accused Criminal Revision Case No. 248 of 1943

Criminal Procedure—Jurisdiction of Juvenile Courts—Juveniles Ordinance, 1934, $\cdot$ Section 8.

The accused, a young person, was tried and convicted on a charge of defilement of a girl under 16 years of age contrary to Section 138 (1) of the Penal Code by the First Class Magistrate, Kitui. The offence is only triable by the Supreme Court, but the accused wished to be tried by the Juvenile Court.

Held $(27-9-43)$ .--(1) That in the case of a child charged with any offence except murder or manslaughter a juvenile court has not discretion but must dispose of the case finally.

(2) That in the case of a young person brought before a juvenile court for an offence triable only by the Supreme Court other than murder or manslaughter, provided the young person elects to be tried by the juvenile court and not by the Supreme Court, the juvenile court has jurisdiction to try the case.

Stacey, Crown Counsel, for the Crown.

ORDER.—We have very carefully examined the provisions of section 8 of the Juveniles Ordinance, 1934, on the question whether a juvenile court has had jurisdiction conferred on it to try a young person for offences other than murder or manslaughter. It was certainly the intention of the Legislature that such jurisdiction should be conferred; the question is whether the language of the section is reasonably susceptible of the question being answered in the affirmative. We think it desirable to set out the section here:-

"8. (a) Where a child or young person is brought before a juvenile court for any offence it shall be the duty of the court as soon as possible to explain to him in simple language the substance of the alleged offence.

(b) Where a child is brought before a juvenile court for any offence other than murder or manslaughter the case shall be finally disposed of in such court, and it shall not be necessary to ask the parent whether he consents that the child shall be dealt with in the juvenile court.

(c) Where a young person is brought before a juvenile court for an $(c)$ offence triable only by the Supreme Court, other than murder or manslaughter, and the court becomes satisfied at any time during the hearing of the case that it is expedient to deal with it summarily, the court shall put to the young person the following or a similar question, telling him that he may consult his parent or guardian if present in court before replying-

"Do you wish to be tried by this court or by the Supreme Court?" and the court shall explain to the young person and to his parent or guardian if present in court the meaning of being so tried and the place where the trial would be held.

(d) After explaining the substance of the alleged offence the court shall ask the child or the young person (except in cases where the young person does not wish to be tried in the juvenile court) whether he admits the offence.

(e) If the child or young person does not admit the offence the court shall then hear the evidence of the witnesses in support thereof. At the close of the evidence in chief of each such witness the magistrate shall ask the child or young person, or, if he see fit, the child's parent or guardian, whether he wishes to put any questions to the witness.

If the child or young person instead of asking questions wishes to make a statement he shall be allowed to do so. It shall be the duty of the court to put to the witnesses such questions as appear to be necessary. The court may put to the child or young person such questions as may be necessary to explain anything in the statement of the child or young person.

(f) If it appears to the court that a prima facie case is made out, the evidence of any witnesses for the defence shall be heard, and the child or young person shall be allowed to give evidence or to make any statement.

(g) If the child or young person admits the offence or the court is satisfied that it is proved, he shall then be asked if he desires to say anything in extenuation or mitigation of the penalty or otherwise. Before deciding how to deal with him the court shall obtain such information as to his general conduct, home surroundings, school record, and medical history, as may enable it to deal with the case in the best interests of the child or young person, and may put to him any question arising out of such information. For the purpose of obtaining such information or for special medical examination or observation the court may from time to time remand the child or young person on bail or to a place of detention.

(h) If the child or young person admits the offence or the court is satisfied that it is proved, and the court decides that a remand is necessary for purpose of inquiry or observation, the court may cause an entry to be made in the court register or case file that the charge is proved and that the child or young person has been remanded. The court before which a child or young person so remanded is brought may without further proof of the commission of the offence make any order in respect of the child or young person which could have been made, by the court which so remanded the child or young person."

Now if we were dealing with the question in relation to the case of a child under sub-section $(b)$ we consider that the language used is free from any obscurity and that a juvenile court has no discretion in the matter but must dispose of the case finally unless the charge be one of murder or manslaughter.

This sub-section is helpful in construing sub-section $(c)$ , as are also the following sub-sections. The real difference between sub-section $(b)$ and subsection $(c)$ is that whereas in the case of a child the juvenile court must dispose of the case finally, in the case of a young person the court before finally disposing of the case itself, however expedient it may appear to the court to do so, must give the young person an opportunity of deciding himself, with the advice of his parent or guardian, should he wish to consult him whether he wishes to be tried by the juvenile court or the Supreme Court. The remaining sub-sections make it clear that provided the young person elects to be tried by the juvenile court and not the Supreme Court, the juvenile court has jurisdiction to try the case. Directions as to how the juvenile court should proceed for instance in asking the young person whether he admits the offence or where he does not admit the offence, whether after hearing the evidence the court is satisfied that the offence has been proved and as to the magistrate asking the young person whether he wishes to say anything in extenuation or mitigation before deciding how to deal with him, can only be consistent with the juvenile court having jurisdiction.

We have also considered the language of the appropriate part of the Children and Young Persons Act, 1933, language to some extent similar to that used in section 8 of the local ordinance and as a result are strengthened in our view that jurisdiction has been conferred by section 8 and accordingly we make no order in revision, the conviction and sentence being competent.