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Court of AppealPartially AllowedCriminal Appeal No. 41 of 1999

Sadiki George Nyambu & another v Republic [1999] KECA 73 (KLR)

Court of Appeal of Kenya
23 July 1999
1,080 words in judgment
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The bottom line

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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

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Executive summary

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The appellants, Sadiki George Nyambu and Karisa Kasena Kadenge, pleaded guilty before the High Court at Mombasa (Waki, J.) to manslaughter contrary to section 205 of the Penal Code and were each sentenced to 5 years imprisonment on 11th February 1999. They appealed to the Court of Appeal at Mombasa contending the sentences were manifestly excessive given that they had each spent about 9 years in custody pending trial. The facts showed that on 1st November 1990 the appellants assaulted the deceased, Kibanda Mutarurasi, to death with sticks on accusations of witchcraft and buried him in a bush. The first appellant was about 25 years old at the time; the second appellant was 12 years old and in Standard 6. The Court of Appeal, in a single judgment of the court delivered by Gicheru, Lakha and Owuor, JJ.A., held that the superior court erred in sentencing the second appellant to imprisonment: under the Children and Young Persons Act (Cap 141), a child - a person under fourteen years - may not be ordered to imprisonment, and section 3(6) empowers the appellate court to substitute an appropriate order where the convicted person was under eighteen at the time of the offence. The second appellant's appeal was allowed, his sentence set aside, and he was ordered to be set at liberty forthwith unless lawfully held for another cause. The first appellant's appeal against sentence was dismissed, the court holding that the 5-year sentence was not harsh or manifestly excessive in the circumstances of the brutal killing, his long pre-trial incarceration notwithstanding. The judgment binds subordinate courts to refrain from imposing custodial sentences on child offenders and confirms the appellate power to correct such sentences.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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

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01

Lawfulness of sentencing a child (person under fourteen years) to imprisonment

Holding

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.

Reasoning

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.

p. 2
02

Whether the first appellant's 5-year sentence was manifestly excessive

Holding

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.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 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. 2.The first appellant's appeal against sentence is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 2

Costs

No costs order made in the judgment.

Quotable passages

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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
p. 2Error in sentencing a child to imprisonment
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
p. 2Final orders - second appellant's appeal allowed
Consequently, his appeal against sentence is dismissed.
p. 3Final orders - first appellant's appeal dismissed
No child shall be ordered to imprisonment nor to detention in a detention camp.
p. 2Statutory prohibition on imprisonment of children

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.