High Court rules in favour of non-custodial sentences for child offenders


The High Court has ruled that child offenders should only be subjected to custodial sentences as a last resort.

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The High Court has ruled that a child offender may only be detained as a measure of the last resort.

Where a custodial sentence is necessary, the High Court said, it must be for the shortest time.

Sitting in Malindi, Justice Mugure Thande said a child offender shall be held separate from adults and the conditions of detention must be gender appropriate.

She further said that where a child is found guilty of an offence, the court, considering all circumstances, may discharge the child under Section 35 (1) of the Penal Code.

Justice Thande made the ruling while revising the sentence imposed on a minor, SND, who had been sentenced to pay a fine of Sh50,000 or in default serve a three-month jail term.

Justice Thande said that being a child (SND) ought not to have been given a custodial sentence in prison.

Through a letter to the High Court, Kilifi Chief Magistrate Julius Nang’ea applied for revision of the sentence imposed upon SND on account of his age.

SND had been charged before a senior resident magistrate in a Kilifi court with the offence of cutting, felling and removing forest produce, leading to his conviction and sentencing.

The accused, unable to pay the fine was sent to jail to serve the custodial sentence before it was established that he was 17 years old as per the copy of his birth certificate.

Justice Thande further noted that to protect children, Article 53 (2) provides that their best interests are of paramount importance in every matter concerning them.

“The reality in which we live is that children are and will continue to conflict with the law. When this happens, they are dealt with not as adults but as children,” said Justice Thande.

The court ruled that the guilt of SND with which he was charged is not in doubt as he was tried and found guilty by the trial court.

“Being a child, however, he ought not to have been given a custodial sentence in prison, I do allow the application for revision, the sentence imposed is hereby aside,” ruled Justice Thande.

The judge, pursuant to the provisions of Section 239 (1) (a) of the Children Act, discharged SND absolutely under Section 35 (1) of the Penal Code.