Sadiki George Nyambu & another v Republic [1999] KECA 73 (KLR)
The bottom line
#Kenya's Court of Appeal freed a 12-year-old sentenced to 5 years' imprisonment, confirming children can never be jailed, no matter the offence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sentence of 5 years imprisonment imposed on each appellant upon a plea of guilty to manslaughter was manifestly excessive given their approximately 9 years in custody pending trial
- 2.Whether the sentence imposed on the second appellant, who was 12 years old at the time of the offence, was lawful in light of the Children and Young Persons Act
Key legal issues
#Lawfulness of sentencing a child (person under fourteen years) to imprisonment
The superior court erred in sentencing the second appellant, who was 12 years old when he committed the offence, to 5 years imprisonment; such a sentence is insupportable under the Children and Young Persons Act, which prohibits imprisonment of a child.
Section 2 of the Children and Young Persons Act defines a child as a person under fourteen years. Section 16(1) provides that no child shall be ordered to imprisonment. Section 3(6) empowers the appellate court, where the convicted person was under eighteen at the time of the offence, to substitute the conviction and sentence with orders under sections 15 and 17. The proceedings showed the second appellant was 12 at the time of the offence, making the 5-year imprisonment sentence clearly insupportable, compounded by his inordinately long pre-trial incarceration.
Whether the first appellant's 5-year sentence was manifestly excessive
The sentence of 5 years imprisonment imposed on the first appellant, who was about 25 years old at the time of the offence, was not harsh or manifestly excessive notwithstanding his long pre-trial custody.
The first appellant was an adult who, jointly with the second appellant, mercilessly assaulted the deceased to death with sticks on accusations of witchcraft and buried him in a bush. The court held that such a dastardly assault could not excite leniency, and that in the circumstances the 5-year sentence was proportionate; his long incarceration pending trial did not render it manifestly excessive.
Legal principles established
#- Where on appeal it appears that a person convicted by a court other than a juvenile court was under eighteen years of age at the time of the offence, the appellate court has power to substitute the conviction and sentence with findings and orders appropriate under the Children and Young Persons Act; a child may not be sentenced to imprisonment.
Court orders
#- 1.The second appellant's appeal against sentence is allowed; his sentence of 5 years imprisonment is set aside and he is ordered to be set at liberty forthwith unless held in custody for any other lawful cause
- 2.The first appellant's appeal against sentence is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.C. No. 5 of 1997
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court in criminal matters (section 3(6) of the Children and Young Persons Act engaged on appeal against sentence)
Relief refused
#First appellant's appeal against sentence (non-custodial sentence)
The sentence of 5 years imprisonment was not harsh or manifestly excessive in the circumstances, notwithstanding his long incarceration pending trial
Costs
No costs order made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it is plainly obvious that the superior court was in error in sentencing the second appellant, Karisa Kasena Kadenge , to 5 years imprisonment when the proceedings before that court indicated that he was 12 years of age when he committed the offence
we allow his appeal, set aside his sentence of 5 years imprisonment and order that he be set at liberty forthwith unless held in custody for any other lawful cause
Consequently, his appeal against sentence is dismissed.
No child shall be ordered to imprisonment nor to detention in a detention camp.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sadiki George Nyambu & another v Republic [1999] KECA 73 (KLR)", Case Analysis (1999). Criminal Appeal No. 41 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/73/eng@1999-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.