Sentencing of minors who turn 18 during trial elicits mixed reactions

Conviction of young offenders who during the trial attain the age of 18 before the conclusion of their cases continues to elicit heated debate.

This is revealed in various court decisions. While some judicial officers claim there is a lacuna in the law that needs to be addressed, some have said the teens have to be dealt with as per the law.

Last week, a Molo Court sentenced a teen found guilty of defiling a 14-year-old to 20 years in jail. 

EK was found guilty of the offence he committed on March 5, 2023, while still a minor. He allegedly committed the offence at Lelechwet village in Kuresoi South. EK was 17 years old at the time of committing the offence. He allegedly defiled the minor while collecting firewood.

Resident Magistrate M W Kamau while sentencing EK noted that Section 239 of the Children’s Act which deals with various sentences that can be meted out in cases where a minor is in conflict with the law does not provide for sentences that should be given when a child turns 18 years prior to the conclusion of the case.

EK, the court noted was born on July 5, 2005, and as at the time of delivery of judgment on August 24, 2023, he was already 18 years old. “For all intents and purposes, he is an adult,” stated Kamau while sentencing EK.

Similar case

The magistrate cited various decisions made by courts confronted with the issue of sentencing an adult who was a minor during the commission of an offence. Kamau noted that in the case of Amos Kipchirchir Cheruiyot vs. Republic [2020] eKLR Justice Teresia Matheka was confronted with the issue of sentencing an adult who was a minor during the commission of an offence.

In the case of SCN v Republic [2018] a judge, the magistrate quoted, dealt with a similar case where the appellant was 17 years old when he committed the offence and was sentenced to life imprisonment. In the case, the judge is said to have made an analysis of the court’s and the Court of Appeal’s approach to the situation and reduced the appellant’s sentence to ten (10) years’ imprisonment.

The magistrate also cited the case of Daniel Langat Kiprotich vs State [2018] eKLR where the judge noted a lacuna in the law and the need for reform. The Judge in the case is said to have interpreted the provisions of Section 191(1) as giving the court the discretion to deal with a child in any other lawful manner.

The magistrate noted that the judge meant that a court could convict and sentence a child offender to a term of imprisonment, in an adult facility now that the child had committed a serious offence and could not be held in a children’s facility.

“Since the statutory scheme provides that such a child cannot be sent to prison and since the law further provides that such a child can only be sent to a borstal institution for no more than three years, the options are limited to trial courts,” quoted the magistrate. He noted a similar dilemma is created when the offender has already turned 18 years old at the time of conviction or at the time of appeal.

“Where the offence committed was a particularly vicious or serious one, the option of releasing such an offender back to society is not an attractive one. It may even be downright dangerous for the society. Further, it might deny the individual offender a true opportunity to reflect on his actions in a custodial setting and take the rehabilitative turn,” quoted the magistrate.

The Court of Appeal, the magistrate noted had in JKK vs. Republic (2013) which it followed in R vs. Dennis Kirui Cheruiyot (2014) determined that the purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender.

The magistrate noted that a death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of 16 years, the court can sentence him in any other lawful manner.

The court, the magistrate noted paid attention to the offence committed by the appellant which was serious, and an innocent life was lost.

“We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes, which can only happen after serving a custodial sentence,” she quoted.

Kamau, while sentencing EK said it appears that the only custodial punishment available for any child offender is either the rehabilitation school or the Borstal institution (youth detention centre), depending on the age of the child. The magistrate noted that once a person turns 18, then he can be dealt with in the manner provided by the law, as the sentences in the Children’s Act, 2022 are only meant to rehabilitate children.

Having already turned 18 years old, EK, the court said must bear the consequences for the offence that he committed. The offence EK committed, the magistrate noted, was violent and against a vulnerable victim. “As a consequence, the accused person herein, EK is hereby sentenced to 20 years imprisonment,” ruled the court.

Lawyer Peter Bore, however, says there is no lacuna in law.

“The lacuna was there then but it was cured by Section 221 (3) of the Children Act 2022 which repealed the Children Act of 2006. It is tragic that a court of law still refers to section 191 of the old Children Act in convicting a minor who turned an adult before sentence,” said Bore.

Bore said the court relied decisions made before the new Children’s Act came into force. He urged judicial officers to read the provisions of the new Children Act.