JNG v Republic (Criminal Appeal 189 of 2017) [2025] KECA 1006 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that detaining a child offender at the President's pleasure is unconstitutional and ordered JNG's release after 7½ years.
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 imposed upon the appellant by the learned trial Judge was lawful
- 2.The appropriate sentence for a minor convicted of murder
Key legal issues
#Whether detention at the President's pleasure under section 25(2) of the Penal Code was a lawful sentence for a minor convicted of murder
No. The sentence was unlawful by dint of Article 53(1)(f) of the Constitution and Article 37(b) of the UN Convention on the Rights of the Child, imported into Kenyan law by Article 2(5) of the Constitution.
Both parties accepted the sentence was unlawful. Article 53(1)(f) requires that detention of a child be a last resort and for the shortest appropriate period; Article 37(b) of the UN Convention on the Rights of the Child, imported by Article 2(5) of the Constitution, requires detention of a child to be a measure of last resort for the shortest appropriate time. Indeterminate detention at the President's pleasure under section 25(2) of the Penal Code contravenes these standards, and superior courts have declared sections 25(2) and (3) of the Penal Code unconstitutional as applied to minors.
Which Children Act provision should have applied to the appellant
Section 191(1)(g) of the Children Act, not section 191(1)(e). The appellant was 16 at sentencing, so the Borstal institutions provision applied; the trial judge erred in applying 191(1)(e).
The trial Judge applied section 191(1)(e), which covers children above 10 and under 15 years, and held she was not bound by it since the appellant was 16 at sentence. The Court held the relevant age for sentencing is the age at the time of sentence; being 16, section 191(1)(g), which provides for dealing with a child who has attained sixteen years through borstal institutions, should have been applied. The Judge's failure to consider that provision was a misdirection constituting error.
The appropriate sentence to impose on appeal
The period already served (7½ years) is sufficient; the detention order is set aside and the appellant is to be set at liberty unless otherwise lawfully held.
Having found the sentence unlawful and the correct provision (borstal under section 191(1)(g)) no longer available because the appellant is too old for a Borstal institution, the Court weighed that he had already served 7½ years in custody. Both the appellant's counsel and the State had submitted that the period served was sufficient given aggravating and mitigating circumstances. The Court concluded the appeal succeeds in part and substituted release for the detention order.
Legal principles established
#- The relevant time in determining the age of a child for criminal liability is the age at the time of the offence, not the age at conviction, while the relevant age for sentencing is the age at the time of sentence.
- Sentencing a child under section 25(2) of the Penal Code (detention at the President's pleasure) is contrary to Article 53(1)(f) of the Constitution and Article 37(b) of the UN Convention on the Rights of the Child where the correct Children Act provision has been overlooked; a sentencing court must apply the provision of the Children Act appropriate to the child's age at sentencing.
- On a first appeal, the appellate court must rehear the case and reconsider the evidence as a whole, making up its own mind without disregarding the judgment appealed from.
Court orders
#- 1.Set aside the order that the appellant serve a minimum of 10 years detained at the President's pleasure
- 2.Direct that the appellant be set at liberty unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal against sentence in a murder trial (criminal appellate jurisdiction; the judgment does not cite the specific constitutional provision)
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.
Based on our finding above we find that the appellant’s appeal succeeds in part. We set aside the order to serve a minimum of 10 years at the President’s pleasure and in its place direct that he should be set at liberty unless he is otherwise lawfully held.
It is common ground that the sentence meted out was unlawful by dint of Article 53 (1) (f) of the Constitution; and Article 37 (b) of the UN Convention on the Rights of a Child, which by virtue of Kenya is a signatory, by virtue of Article 2(5) of the Constitution which expressly imports the General Rules of International Law and makes them part of the law of Kenya.
The relevant time in determining the age of a child for criminal liability is the age at the time of the ofience not age at the time of conviction. As for the relevant time to consider the appropriate sentence is the age at the time of sentence.
Being 16 years at the time of the sentence, the appropriate provision of the Children Act should have been section 191 (1)(g) as opposed to 191 (1)(e) which the learned Judge applied.
Issues in the judgment
#The judgment reports the State as conceding that the sentence was unlawful while describing the conviction as safe, but also records counsel citing the superior court declarations as unconstitutionality of section 25(2) and (3) of the Penal Code; the citation of J.M.K. & another v Republic [2011] eKLR stating section 25(2) 'is still a lawful provision' sits uneasily with the Court's acceptance that the sentence was unlawful, though the Court distinguishes it on facts by referencing the later authorities.
The quotation from section 191(1) of the Children Act in the judgment introduces sub-paragraph 'f.' where the Court elsewhere discusses '191 (1)(g)', a possible typographical inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JNG v Republic (Criminal Appeal 189 of 2017) [2025] KECA 1006 (KLR)", Case Analysis (2025). Criminal Appeal (unspecified number), Court of Appeal at Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1006/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.