A High Court Judge has sparked a debate over his views that some minors are discriminated against during the trial and determination of their cases.
Justice Heston Nyaga in his judgment said that it is unfair to shield minors below 14 years from criminal culpability while subjecting those who are 15 to 17 years to the full wrath of the law for crimes they committed as minors.
Justice Nyaga said the country should look for a remedy as there is a clear lacuna on how to deal with teens who are approaching 18 years. He said that the law discriminates against those who are above 14 years old.
"I am of the view that the law ought to have provided some form of protection as well, even if not identical to the one under Section 221 of the Act. If the Act intended them to be treated differently, it ought to have expressly stated so. Why call them children and then deal with them like adults?" Posed the Judge.
"I would easily find that the children in this age bracket (over 14 years) have not been adequately protected; so there is an element of discrimination. There is no explanation why the lacuna in the law continues to exist despite several decisions of the superior court addressing the issue," he added.
The case involved a teen who defiled a 14-year-old girl while he was 17 years old. The magistrate's court however found him guilty and sentenced him to 20 years imprisonment, a week to his 18th birthday.
However, Justice Nyaga reduced the sentence to five years. He said that 20 years was too excessive. He argued that although there is no law guiding courts on how to deal with those who commit crimes as minors but are convicted as adults, other judges have found a custom-made way of dealing with such cases.
Justice Nyaga challenged Parliament to re-look into the issue since Justices Joel Ngugi and Teresiah Matheka had already flagged out the gap.
"As can be seen, the law has taken care of the children in conflict with the law up to the age of 14. They are to be treated as children even if they attain the age of majority in the course of the trial. The same protection is not provided to children above 14 years," he said.
"The question is, aren't they also children deserving of some form of protection? Why call them children and then abandon them at the most crucial moment just when the court is determining their fate? Is there so much difference between a child who is 14 years old and one who is, say, 15 years old that they will be treated so differently by the law?" He posed.
In the case, the boy code-named EK was charged in March last year with defilement. He also faced an alternative count of committing an indecent act with a minor.
After being slapped with 20 years, the teen moved to the High Court. EK stated that the lower court erred by using the words convict and accused person while knowing he was a minor.
In his eight grounds of appeal, he also argued that the Magistrate Court was unfair to slap him with the minimum sentence provided by the Sexual Offences Act without considering his mitigation.
EK also poked holes in the evidence produced in court. According to EK, there was a contradiction in the testimony given by the victim and the investigating officer.
On one hand, he argued, that the victim claimed he had blocked her mouth with his hand while on the other the investigating officer claimed that he threatened her.
EK stated that his case was that of mistaken identity as the person who was accused of committing the heinous act bore only one name while his birth certificate had two names.
He said that he was never taken to a chief or a police station for identification. In his unsworn testimony, the accused denied committing the offence. He testified that on the material date, he was at the river when a member of nyumba kumi approached him in the company of four men.
EK claimed the nyumba kumi official did not inform him anything but assaulted him before taking him to an office in Kapkoi and later to Kuresoi Police Station. He said his parents and the victim's parents had a land dispute. The other party allegedly wanted EK's family to vacate the land.
While urging the court to dismiss the appeal, the Director of Public Prosecution (DPP) said the victim knew EK and was positively identified owing to the time he committed the crime
On the issue of age, the DPP said that EK was sentenced as an adult because he had achieved the majority age. According to the DPP, the accused could not have been taken to a borstal institution as it only admits those who are below 18 years.
The DPP asserted that EK should be punished by being jailed in order to help him reform and grow as a responsible person. The DPP proposed 15 years imprisonment in place of the mandatory sentence.
Justice Nyaga said that owing to EK's conduct of defiling the victim, he ought to cool his heels behind bars.
However, the opinion is split on how to deal with teens who are against the law but become adults during the trial.
Justice Francis Gikonyo in 2021 freed a boy who was charged with stock theft at the age of 17 years.
The teen code-named VPR had been jailed for five years. However, Justice Gikonyo was of the view that VPR was a child who needed care rather than being hauled through the criminal justice system.
He argued that the court ought to have invited the children's officer before deciding on his fate. According to Justice Gikonyo, the police officers who arrest a minor and the DPP ought to have factored in the age of the teenager before bringing him before the court.
In addition, he said, the magistrate's court should also look at the issue of the age before the trial begins. It emerged that VPR had actually spent one year in adult remand as the case was ongoing.
"The situation in this case could have been avoided had the police and the prosecution expressly stated the age of the appellant to the court at the inception of the proceedings. I hope to end my career as a judge without having to deal with or remedy a sorry situation such as this which was foreseeable amongst the implementing state organs herein, and averted. Amen," said Justice Gikonyo.
On the other hand, Justice Matheka said that minors who commit crimes should not be treated with kid gloves. Instead, she proposed that there should be structures in place to deal with teens who are approaching young adulthood.
In her judgment, she opted to hand three years probation for a teen who was found guilty of defilement. In the case, the teen code-named AKC was handed life imprisonment by the magistrate's court.
However, judge Matheka was of the view that fast-tracking cases involving teens is not enough. She argued that courts should factor in the welfare of a minor and correction, other than focusing on punishment.
"I am not saying that children who commit horrendous crimes should be treated with kid gloves. No. I am just saying that as the criminal justice system stakeholders, the adults in the room, we ought to see that there is something wrong that needs to be specifically righted by responding to the specific issues instead of reacting to them, when children commit serious crimes," she said.
