EWS v Republic (Criminal Appeal 314 of 2018) [2019] KECA 674 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man convicted as a minor because courts ignored his age and denied him a lawyer.
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 appellant's rights to a fair trial were violated by the failure of the trial court to inquire into or establish his age as a minor
- 2.Whether the failure to provide the appellant, a child, with legal assistance at Government expense vitiated the trial
- 3.Whether the duration of the trial satisfied the requirement that matters involving children be determined without delay
- 4.Whether a retrial should be ordered if the conviction was a nullity
Key legal issues
#Failure to establish the age of an apparently underage accused
The courts below acted unfairly in failing to inquire into the appellant's age despite his claim to be a minor; the trial was conducted in disregard of his constitutional and statutory protections as a child
The appellant claimed to have been 17 at the time of the offence and requested age assessment; the prosecution conceded this. Article 53(2) makes the best interests of the child paramount, and section 186 of the Children Act confers specific safeguards on child accused persons. Anybody under 18 is a child under both the Constitution and the Children Act. No inquiry of any sort was made into his age, and the courts' indifference rendered the trial unfair.
Denial of legal assistance to a child accused
Failure to provide or even offer legal assistance at Government expense to a child facing a charge carrying a lengthy jail term vitiated the trial, violating the non-derogable right to a fair trial under article 25(c)
Section 186(b) of the Children Act requires that a child unable to obtain legal assistance be provided with Government-funded assistance in preparing and presenting his defence. The appellant defended himself against a serious charge carrying a 20-year sentence without being asked whether he could afford a lawyer. Because the fair-trial right is non-derogable under article 25(c), the omission went to the core of fairness and nullified the conviction and sentence.
Retrial where a child's trial is a nullity
A retrial is discretionary and depends on the facts; it should not be ordered where the accused would lose child-specific protections and has already served a substantial period in custody
Relying on Braganza and Ahmed Sumar, the court noted that a retrial is ordered only where the interests of justice require it and without prejudice or injustice to the accused. Here the appellant was no longer a child and so could not reclaim the child-specific guarantees lost with the vitiated trial, and he had been in custody for over seven years since conviction. Ordering a retrial would therefore not be a service to justice.
Disparate application of the Sexual Offences Act against male adolescents
The court deprecated the skewed application of the Sexual Offences Act that treats consenting adolescent boys as villains and girls as victims in consensual teenage sexual activity
Observing that the sexual intercourse between two teenagers had been ongoing for over eight months and was apparently voluntary on the complainant's part, the court questioned whether justice is served by a law deployed so disparately: the girl is branded a victim and guided against her paramour while the boy receives a lengthy jail term. The court doubted that such a disparate and discriminative effect conduced to good sense, policy, justice or fairness, though it did not pronounce on the complainant's credibility or strike down the statute.
Legal principles established
#- Where an accused person is a child, the trial court is constitutionally bound to inquire into and accord effect to the child's age and the best-interests-of-the-child standard, and failure to provide a child accused with legal assistance at Government expense in a serious criminal trial violates the non-derogable right to a fair trial and renders the conviction and sentence null and void
Court orders
#- 1.Appeal allowed
- 2.Conviction quashed
- 3.Sentence of 20 years imprisonment set aside
- 4.Appellant to be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Jurisdiction invoked
- Second appellate jurisdiction under the Criminal Procedure Code over an appeal from the High Court exercising first appellate jurisdiction in a criminal case
Relief refused
#Retrial
The appellant was no longer a child and had already served over seven years in prison; a retrial would not serve the interests of justice
Costs
No costs order made - criminal appeal; silence in 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.
In the result, we allow the appeal, quash the conviction, set aside the sentence and order that the appellant be set at liberty forthwith, unless otherwise lawfully held.
We think, with respect, that this was such a fundamental omission it went to the very core of the fairness of the appellant’s trial, and vitiated it. The ensuing conviction and sentence were thus null and void for violation of the appellant’s right to a fair trial which, by virtue of article 25(c) of the Constitution, is non-derogable and not subject to limitation.
This is in keeping with the Constitution’s own peremptory requirement at article 53(2) that in every matter concerning a child, the best interest of the child shall be of paramount importance.
It bears repeating that trial courts must be more vigilant to ensure that young persons in confiict with the law are accorded the full protection afiorded by various constitutional and statutory guarantees and safeguards that exist in our laws.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EWS v Republic (Criminal Appeal 314 of 2018) [2019] KECA 674 (KLR)", Case Analysis (2019). Criminal Appeal (as stated in record; self-crafted memorandum of appeal from High Court at Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/674/eng@2019-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.