Court frees minor accused of murdering eight-year-old friend


Kisumu Court ruled that the minor was not criminally responsible.

Photo credit: File | Nation Media Group

What you need to know:

  • The 10-year-old has been accused of committing the offence on November 25, 2023.
  • Judge says the child was under the age of 12 at the material time of the alleged murder.

A minor who was accused of killing his eight-year-old friend last year has been set free by a Kisumu Court.

The 10-year-old referred to in court documents as N.A.S is alleged to have murdered T.D.O at Andingo Olasi Village in Nyakach sub-County on November 25, 2023.

When the suspect was arraigned on April 8, 2024, the prosecutor sought more time to determine if the age of the minor qualified him to bear criminal responsibility.

On May 21, 2024, a mental assessment was done on the suspect and he was found to be fit. 

According to defense counsel, Petty Omollo, the child was under the age of 12 years and therefore was not criminally responsible and could not be charged with a criminal offence.

The counsel submitted that Section 4 of the Children’s Act, 2022 overrides Section 14 of the Penal Code on the presumption of children being criminally responsible if it can be shown that they were aware that whatever they were doing was wrong and prayed that the minor be taken to a Charitable Children’s Home.

However, Prosecution Counsel James Marete submitted that the provisions of Section 221 of the Children’s Act, 2022 only created a presumption which he cited as rebuttal and not absolute.  

“The greater benefit is when the child goes to full trial because Section 221 of the Children’s Act can easily be abused,” said Mr Marete. 

He added that the issue of criminal responsibility can only be raised after the court has heard evidence by the prosecution witnesses to establish whether the child was capable of understanding the difference between right and wrong and not terminate the case at an early stage.

The United Nations ruled that the minimum age of criminal responsibility should not be lower than 12 years because children under the age of 12 have not yet reached the necessary developmental stages in “emotional, mental and intellectual maturity,” to be held responsible for criminal behavior.

Justice Roselyne Aburili found and held that the minor was not criminally responsible for any act or omission. 

According to the judge, under criminal law, it is taken that a child of tender years is not deemed capable of conceiving the thought of committing a criminal offence and acting upon it in the same way as an adult would.

The judge said she was persuaded beyond doubt that the child was under the age of 12 at the material time of the alleged murder of the deceased and therefore not a person in conflict with the law.

“In the end, I find and hold that N.A.S is not criminally responsible for any act or omission. The Information for murder dated March 25, 2024 against the child is hereby rejected and quashed and the subject child is hereby set at liberty,” said Justice Aburili.

The judge added that from the Probation Officer’s report dated May 24, 2024, she gathered that the child lives in a dysfunctional family where he had clearly been abandoned and neglected by his parents.

The judge directed that the minor be presented before the children’s court at Kisumu by the County Children’s Officer for proceedings under the Children’s Act.

This, she said, should be in the best interest of the child as one in need of care and protection.

“During the pendency of the said proceedings, the minor shall be placed in a Children’s Rescue Centre to be identified by the County Children’s officer,” said Justice Aburili.

She ordered that the County Children’s officer be served the ruling to ensure that the child is taken custody of, from the Kisumu Children’s Remand Home immediately for proceedings to be commenced.

The minor’s father, who was present in court for the first time since the proceedings began in April, said he was unable to attend court sessions because he did not have money for bus fare from his rural home to Kisumu City.

He also told the court that he is in his 50s and is a recovering alcoholic.

Justice Aburili also mentioned that she observed how the minor reacted when he saw his father walk into the courtroom.

"I saw how his face lit up when he saw his father," the judge said.

However, she advised the father to be compassionate and show love to his son.

Reached on the phone, the parents of the deceased child declined to comment on the matter.

"Please we don't want anything that reminds us of that incident," the mother of the deceased said and hanged up.