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Court of AppealAllowedCriminal Appeal 192 of 2018

SJ alias S v Republic (Criminal Appeal 192 of 2018) (12 April 2024) (Reasons) [2024] KECA 453 (KLR)

Court of Appeal
12 April 2024
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed a man convicted as a child, ruling indefinite detention at the President's pleasure is unconstitutional.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Okwengu, Omondi and Ngugi, JJA) delivered reserved reasons for its decision of 25th October 2023 allowing this appeal and directing the appellant's release. The appellant had been convicted of robbery with violence in Busia Criminal Case No. 425 of 2002 and sentenced to death in December 2005. During the trial he claimed to be 16 years old; the trial court ordered an age assessment that was never carried out. His first appeal to the High Court failed, but on second appeal this Court set aside the death sentence and substituted detention at the President's pleasure. He then petitioned the High Court (Tuiyott, J), which dismissed his petition on 16th November 2015 (the judgment also records 15th November 2015), leading to this appeal. Counsel relied on Article 53 of the Constitution and AOO & 6 Others v AG, where Mativo, J declared indefinite detention at the President's pleasure contrary to the separation of powers. The respondent argued the appellant had not exhausted the power-of-mercy process under Article 133(1) and that the age issue had already been addressed. The Court was satisfied, on a belated age assessment, that the appellant was 16 at conviction, making him a child. It held that detention at the President's pleasure, being indeterminate, was inconsistent with the Constitution and violated his rights, agreed with the cited superior court authority, reversed its earlier order, and directed his release forthwith unless otherwise lawfully held, noting his over 15 years in detention.

Questions the Court framed

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

  1. 1.Whether the appellant was a child (under 18) at the time of conviction and sentencing
  2. 2.Whether the order detaining the appellant at the President's pleasure was constitutional
  3. 3.Whether the trial court erred in failing to assess the appellant's age and apply Section 191 of the Children's Act

Key legal issues

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01

Appellant's age at conviction

Holding

The appellant was under 18, a child, when convicted and sentenced.

Reasoning

The appellant had raised his age at trial and an age assessment was ordered but never carried out. A later assessment by Dr. Patson Kubuta confirmed he was 16 as at 13th December 2005. The Court was thus satisfied he was a child at conviction and sentence.

p. 2
02

Constitutionality of detention at the President's pleasure

Holding

Detention at the President's pleasure is an unconstitutional indeterminate sentence for a child offender.

Reasoning

The Court endorsed superior court authority, notably AOO & 6 Others v AG, holding that indefinite detention at the President's pleasure offends the separation of powers. Applied to a person convicted as a child, it violated his constitutional rights.

p. 2

Legal principles established

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  • An order for detention of a child offender at the pleasure of the President is an indeterminate term that is inconsistent with the Constitution and violates the child's constitutional rights.
  • Where a trial court is put on notice of a possible issue as to an accused's age, an order for age assessment must be acted upon before trial and sentence proceed.

Court orders

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  1. 1.Appeal allowed
  2. 2.Previous order of the Court for detention of the appellant at the President's pleasure reversed
  3. 3.Appellant released forthwith unless otherwise lawfully held

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 Busia
Constitutional Petition No. 5 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a constitutional petition (Criminal Appeal 192 of 2018)

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.

An age assessment done by Dr. Patson Kubuta on 23rd June 2015, though belated, confirmed that the appellant was 16 years old as at 13th December, 2005, when he was convicted and sentenced.
p. 2age of the offender at conviction
The order made by this Court for him to be detained at the pleasure of the President, which is an indeterminate term, was inconsistent with the Constitution and a violation of his constitutional rights.
p. 2unconstitutionality of detention at President's pleasure
we allowed the appeal and reversed the previous order of the Court for the detention of the appellant at the President's pleasure.
p. 2disposition
directed that the appellant, who is now obviously an adult, be released forthwith unless otherwise lawfully held.
p. 2final order of release

Issues in the judgment

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minor

The judgment states the petition in Busia High Court was 'Constitutional Petition No. 5 of 2017' while the coram references 'Constitutional Petition No. 5 of 2014'.

minor

The judgment gives conflicting dates for the dismissal of the petition.

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, "SJ alias S v Republic (Criminal Appeal 192 of 2018)  (12 April 2024) (Reasons) [2024] KECA 453 (KLR)", Case Analysis (2024). Criminal Appeal 192 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/453/eng@2024-04-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.