1. At the age of 16 years, PMG found himself in conflict with the law by contravening Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The victim was five (5) years old. In the alternative, he faced the charge of committing an Indecent Act with a child by intentionally touching her vagina for which he was found culpable.
2. The trial court in passing the decision rendered itself thus;
“6. The subject is said to be 16 years old. From my understanding of Section 239 of the Children’s Act above, a borstal institution is an available option for Subjects 16 years and above. I am properly guided by the best interests of the offender; the need to rehabilitate him as well as the need to fit the punishment to the crime as a way of voicing the society’s denunciation of the criminal act by the offender. A custodial sentence ought to be the last resort sentence a court can met to a minor. Sentence that promotes rehabilitation is preferred to allow a young person to reform.
7. However, looking at the offence, its circumstances and the circumstances prevailing in the offender’s way of life, I am persuaded to believe that he will benefit more by being placed in a borstal institution. The victim was 6 years old at the time. He was ten years old than she was. She deserves a stringent sentence to be met on the subject to deter him from taking advantage of children of tender years and defiling them in the future. He would be removed from the society and he will be under supervision to rehabilitate him and wean him out of his offensive behavior.”
3. The substratum of the application is that the court did not consider Section 8 as read with Section 8(1)(a)(b) of the Children Act No. 29 of 2022 which focuses on the individualized characteristics of the child, including the age, maturity and developmental stage to ensure decisions are tailored to him and specifically addresses the child’s special needs.
4. That three (3) years in a Borstal Institution and 7 years in prison for adults is against the right to protection from cruel and inhumane treatment of minors and as such the intended objective of reforming and rehabilitation of the minor will not be achieved as it will be more of a punishment than training. That serving a sentence in two (2) different instructions will be double jeopardy. That Section 22(3) of the Borstal Institution Act allows a person detained at a Borstal Institution to be detained until he attains age of twenty-one (21) years.
5. The application is further supported by recommendation of the officer-in-charge of Shikusa Borstal Institution who stated that the sentence should have been in the best interest of a child which is to reform and train. That instead of the imprisonment terms it would even be advisable for the minor to be released on a non-custodial sentence.
6. In response the State through learned prosecution counsel, Ms. Annastacia Mumbe filed a replying affidavit. In opposing the application, she depones that the Applicant was lawfully convicted of the offence of defilement, a grave and serious offence under the Sexual Offences Act which attracts severe consequences due to violation of dignity, body integrity and rights of the victim.
7. That courts have always underscored the need for deterrent and proportionate sentencing since the offence is serious as it involves the protection of minors and vulnerable persons hence the court properly considered the Applicant’s age, and, in compliance with law, committed him to the Borstal Institution for the statutory period of three (3) years.
8. That the existing legal framework does not extinguish the remainder of the custodial sentence upon completion of the Borstal term and upon attaining the age of majority, the remaining portion of the sentence must lawfully be completed within adult prison system.
9. That the Applicant has failed to demonstrate any illegality in the conviction or sentence violation of his constitutional rights or exceptional circumstances warranting the court’s intervention. That orders sought would prematurely reduce a lawful sentence thereby undermining the administration of justice which would prejudice the interest of justice, diminish the gravity of the offence and erode public confidence in the Criminal Justice System.
10. That the Borstal system emphasizes rehabilitation which must be balanced with accountability, deterrence and the rights of victims, that the Applicant’s remedy, if any lies with a properly instituted appeal or lawful resentencing process. She called for dismissal of the application.
11. I have considered rival arguments. This court has been approached in its revisionary jurisdiction, therefore to satisfy itself of the legality, correctness, propriety of the order made by the trial court, it called for the record of the lower court as required by Section 362 of the Criminal Procedure Code (CPC).
12. The supreme law of this land explicitly provides for protection of children, even those in conflict with the law and detention has been used as a last resort. Article 53(1)(f) of the Constitution provides thus;
(1)Every child has the right—
(f)not to be detained, except as a measure of last resort, and when detained, to be held—
(i)for the shortest appropriate period of time; and
(ii)separate from adults and in conditions that take account of the child’s sex and age.
13. Looking at the judgment, it was stated thus;
“He is convicted under Section 215 of the Criminal Procedure Code of the offence of Defilement contrary to Section 8(1) as read together with Section 8(4) of the Sexual Offences Act No. 3 of 2006.”
14. This is followed by the disposition order which is titled; “SENTENCE”
15. The Children Act defines a child thus;
"child" means an individual who has not attained the age of eighteen years;
16. Section 237 of the Children Act provides;
(1)The words "conviction" and "sentence" shall not be used in relation to a child being dealt with by the Children’s Court.
(2)Without prejudice to the generality of subsection (1), any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding, as the case may be.
17. The terms “conviction” and “sentence” are prohibited. The terminology in a children matter is different from that of adult criminal terms.
18. The law upholds the best interest of a child (see Article 53(2) of the Constitution). And, where a child is in conflict with the law to the satisfaction of the court there is guidance of how the court should deal with the matter. Section 239 of the Children Act gives the methods to be adopted. Section 239(1)(g) which is relevant herein provides thus;
(1)Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—
(g)in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;
19. The learned trial Magistrate considered the matter and correctly appreciated that it was in the best interest of the minor to be rehabilitated and the best option was committal to a Borstal Institution.
20. Section 5 of the Borstal Institution Act (Act) provides thus;
Before sentencing a youthful offender, a court shall consider the evidence available as to his character and previous conduct and the circumstances of the offence, and whether it is expedient for his reformation that he should undergo a period of training in a borstal institution.
21. The court called for a probation report in an endeavor to establish the minor’s background, social patterns, family values, character so as to determine what order to make. It was the recommendation of the Probation Officer that the subject was involved in indiscipline cases and there was fear of the offence being repeated. Communal safety was a risk. In the result it was recommended that he be committed to Shikusa Borstal Institution for a period of three (3) years.
22. Section 6 of the Act states thus;
(1)Where the High Court or a subordinate court of the first class or a juvenile court is satisfied, after considering the matters specified in section 5, that it is expedient for his reformation that a youthful offender should undergo training in a borstal institution, it may, instead of dealing with the offender in any other way, direct that the offender be sent to a borstal institution for a period of three years.
(2)
(a)Where it appears to any court other than the High Court or a subordinate court of the first class after considering the matters specified as aforesaid, that a youthful offender should, for his reformation, undergo training in a borstal institution, it may, instead of dealing with the offender in any other way, after recording the same, commit the offender in custody to a juvenile court having jurisdiction in the area, for sentence.
(b)The juvenile court to which the youthful offender is committed shall itself consider the matters specified as aforesaid, and, if it is satisfied that it is expedient for his reformation that the offender should undergo training in a borstal institution, it may direct that the offender be sent to a borstal institution for a period of three years, or may deal with the offender in any way which would have been open to the court which committed the offender.
23. The court ordered thus;
“Subject is sentenced to three (3) years at Shikusa Borstal Institution. The sentence shall run from 19/02/2025 when subject was remanded. He shall thereafter be transferred to an appropriate prison to serve the rest of the seven (7) year sentence upon attaining the age of majority. Right of appeal 14 days”
24. The court made a consecutive order requiring the minor to be rehabilitated and upon becoming an adult to be moved to prison to serve sentence as an adult. This was a hybrid sentence.
25. In K v Republic (Criminal Revision E026 of 2025) [2025] KEHC 16675 (KLR) a case that is persuasive the court stated that;
“I have gone through the Borstal Institutions Act and I have not seen any section that gives power to a court to sentence a youthful offender to both commitment to a borstal institution and to prison custody upon attaining the age of 18 years. The applicant herein was aged 16 years at the time he was sentenced. The proper sentence that the court should have passed on him was committing him borstal institution for a period of 3 years.”
26. Notably, the minor was sentenced prior to attaining the age of majority. Therefore, the court was obligated to comply strictly with the methods provided by Section 239. Even if the court opted to deal with the case as it did. The law states “…..one or more of the following ways”.
27. As correctly pointed out by the learned prosecution counsel, there is need of balancing the rights of victims, more so in sexual offences. The Victim Protection Act is instrumental in ensuring that victims are protected. This is a case where the victim was vulnerable whose best interest should have been considered above all. But a minor who is neither convicted nor sentenced should not be ordered to go to prison for correctional purposes.
28. This would call upon the State Department of Children Services in the course of safeguarding children’s rights to carry out necessary reforms to take note of the lacuna in the child justice system and come up with proper rehabilitation institutions that would accommodate children who commit serious offences to be placed for a longer duration.
29. On the sentence imposed, a similar matter was determined in K v ODPP (Miscellaneous Criminal Revision E024 of 2026) [2026] 6342 (KLR) where the court delivered itself thus;
“Sentencing a fifteen-year-old child to serve part of the sentence in prison after attaining majority age defeats the entire philosophy of the child justice system. Such an order disregards the rehabilitative objective contemplated under the Constitution, the Children Act and international instruments including the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.”
30. This crystalizes in the fact that the sentence meted out was illegal. Since the status was determined by the age at the time of the offence and even during sentencing he was a minor. He was supposed to be punished as a child.
31. It is noteworthy that the minor committed an act of indecency which is a serious sexual offence but to waive the case to be transferred to an adult prison would call for facing a formal adult conviction and sentencing which was not the case as the Subject was a minor.
32. The upshot is that I call to this court the order of the trial court which I quash and set aside then substitute it with an order that the Subject committed an Indecent Act contrary to Section 11(1) of the Sexual Offences Act hence reach a finding of guilt.
33. It is hence the deposition of the court that the Subject committed the act which calls for a rehabilitative action which shall be served at the Shikusa Borstal Institution for a period of 3 years until he attains the age of majority.
34. And upon release from the Borstal Institution, pursuant to the provisions of Section 239(1)(c) of the Children Act, he will be required to be under Probation Supervision for a period of three (3) years.
35. It is so ordered.
2. The trial court in passing the decision rendered itself thus;
“6. The subject is said to be 16 years old. From my understanding of Section 239 of the Children’s Act above, a borstal institution is an available option for Subjects 16 years and above. I am properly guided by the best interests of the offender; the need to rehabilitate him as well as the need to fit the punishment to the crime as a way of voicing the society’s denunciation of the criminal act by the offender. A custodial sentence ought to be the last resort sentence a court can met to a minor. Sentence that promotes rehabilitation is preferred to allow a young person to reform.
7. However, looking at the offence, its circumstances and the circumstances prevailing in the offender’s way of life, I am persuaded to believe that he will benefit more by being placed in a borstal institution. The victim was 6 years old at the time. He was ten years old than she was. She deserves a stringent sentence to be met on the subject to deter him from taking advantage of children of tender years and defiling them in the future. He would be removed from the society and he will be under supervision to rehabilitate him and wean him out of his offensive behavior.”
3. The substratum of the application is that the court did not consider Section 8 as read with Section 8(1)(a)(b) of the Children Act No. 29 of 2022 which focuses on the individualized characteristics of the child, including the age, maturity and developmental stage to ensure decisions are tailored to him and specifically addresses the child’s special needs.
4. That three (3) years in a Borstal Institution and 7 years in prison for adults is against the right to protection from cruel and inhumane treatment of minors and as such the intended objective of reforming and rehabilitation of the minor will not be achieved as it will be more of a punishment than training. That serving a sentence in two (2) different instructions will be double jeopardy. That Section 22(3) of the Borstal Institution Act allows a person detained at a Borstal Institution to be detained until he attains age of twenty-one (21) years.
5. The application is further supported by recommendation of the officer-in-charge of Shikusa Borstal Institution who stated that the sentence should have been in the best interest of a child which is to reform and train. That instead of the imprisonment terms it would even be advisable for the minor to be released on a non-custodial sentence.
6. In response the State through learned prosecution counsel, Ms. Annastacia Mumbe filed a replying affidavit. In opposing the application, she depones that the Applicant was lawfully convicted of the offence of defilement, a grave and serious offence under the Sexual Offences Act which attracts severe consequences due to violation of dignity, body integrity and rights of the victim.
7. That courts have always underscored the need for deterrent and proportionate sentencing since the offence is serious as it involves the protection of minors and vulnerable persons hence the court properly considered the Applicant’s age, and, in compliance with law, committed him to the Borstal Institution for the statutory period of three (3) years.
8. That the existing legal framework does not extinguish the remainder of the custodial sentence upon completion of the Borstal term and upon attaining the age of majority, the remaining portion of the sentence must lawfully be completed within adult prison system.
9. That the Applicant has failed to demonstrate any illegality in the conviction or sentence violation of his constitutional rights or exceptional circumstances warranting the court’s intervention. That orders sought would prematurely reduce a lawful sentence thereby undermining the administration of justice which would prejudice the interest of justice, diminish the gravity of the offence and erode public confidence in the Criminal Justice System.
10. That the Borstal system emphasizes rehabilitation which must be balanced with accountability, deterrence and the rights of victims, that the Applicant’s remedy, if any lies with a properly instituted appeal or lawful resentencing process. She called for dismissal of the application.
11. I have considered rival arguments. This court has been approached in its revisionary jurisdiction, therefore to satisfy itself of the legality, correctness, propriety of the order made by the trial court, it called for the record of the lower court as required by Section 362 of the Criminal Procedure Code (CPC).
12. The supreme law of this land explicitly provides for protection of children, even those in conflict with the law and detention has been used as a last resort. Article 53(1)(f) of the Constitution provides thus;
(1)Every child has the right—
(f)not to be detained, except as a measure of last resort, and when detained, to be held—
(i)for the shortest appropriate period of time; and
(ii)separate from adults and in conditions that take account of the child’s sex and age.
13. Looking at the judgment, it was stated thus;
“He is convicted under Section 215 of the Criminal Procedure Code of the offence of Defilement contrary to Section 8(1) as read together with Section 8(4) of the Sexual Offences Act No. 3 of 2006.”
14. This is followed by the disposition order which is titled; “SENTENCE”
15. The Children Act defines a child thus;
"child" means an individual who has not attained the age of eighteen years;
16. Section 237 of the Children Act provides;
(1)The words "conviction" and "sentence" shall not be used in relation to a child being dealt with by the Children’s Court.
(2)Without prejudice to the generality of subsection (1), any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of a child, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order upon such a finding, as the case may be.
17. The terms “conviction” and “sentence” are prohibited. The terminology in a children matter is different from that of adult criminal terms.
18. The law upholds the best interest of a child (see Article 53(2) of the Constitution). And, where a child is in conflict with the law to the satisfaction of the court there is guidance of how the court should deal with the matter. Section 239 of the Children Act gives the methods to be adopted. Section 239(1)(g) which is relevant herein provides thus;
(1)Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—
(g)in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;
19. The learned trial Magistrate considered the matter and correctly appreciated that it was in the best interest of the minor to be rehabilitated and the best option was committal to a Borstal Institution.
20. Section 5 of the Borstal Institution Act (Act) provides thus;
Before sentencing a youthful offender, a court shall consider the evidence available as to his character and previous conduct and the circumstances of the offence, and whether it is expedient for his reformation that he should undergo a period of training in a borstal institution.
21. The court called for a probation report in an endeavor to establish the minor’s background, social patterns, family values, character so as to determine what order to make. It was the recommendation of the Probation Officer that the subject was involved in indiscipline cases and there was fear of the offence being repeated. Communal safety was a risk. In the result it was recommended that he be committed to Shikusa Borstal Institution for a period of three (3) years.
22. Section 6 of the Act states thus;
(1)Where the High Court or a subordinate court of the first class or a juvenile court is satisfied, after considering the matters specified in section 5, that it is expedient for his reformation that a youthful offender should undergo training in a borstal institution, it may, instead of dealing with the offender in any other way, direct that the offender be sent to a borstal institution for a period of three years.
(2)
(a)Where it appears to any court other than the High Court or a subordinate court of the first class after considering the matters specified as aforesaid, that a youthful offender should, for his reformation, undergo training in a borstal institution, it may, instead of dealing with the offender in any other way, after recording the same, commit the offender in custody to a juvenile court having jurisdiction in the area, for sentence.
(b)The juvenile court to which the youthful offender is committed shall itself consider the matters specified as aforesaid, and, if it is satisfied that it is expedient for his reformation that the offender should undergo training in a borstal institution, it may direct that the offender be sent to a borstal institution for a period of three years, or may deal with the offender in any way which would have been open to the court which committed the offender.
23. The court ordered thus;
“Subject is sentenced to three (3) years at Shikusa Borstal Institution. The sentence shall run from 19/02/2025 when subject was remanded. He shall thereafter be transferred to an appropriate prison to serve the rest of the seven (7) year sentence upon attaining the age of majority. Right of appeal 14 days”
24. The court made a consecutive order requiring the minor to be rehabilitated and upon becoming an adult to be moved to prison to serve sentence as an adult. This was a hybrid sentence.
25. In K v Republic (Criminal Revision E026 of 2025) [2025] KEHC 16675 (KLR) a case that is persuasive the court stated that;
“I have gone through the Borstal Institutions Act and I have not seen any section that gives power to a court to sentence a youthful offender to both commitment to a borstal institution and to prison custody upon attaining the age of 18 years. The applicant herein was aged 16 years at the time he was sentenced. The proper sentence that the court should have passed on him was committing him borstal institution for a period of 3 years.”
26. Notably, the minor was sentenced prior to attaining the age of majority. Therefore, the court was obligated to comply strictly with the methods provided by Section 239. Even if the court opted to deal with the case as it did. The law states “…..one or more of the following ways”.
27. As correctly pointed out by the learned prosecution counsel, there is need of balancing the rights of victims, more so in sexual offences. The Victim Protection Act is instrumental in ensuring that victims are protected. This is a case where the victim was vulnerable whose best interest should have been considered above all. But a minor who is neither convicted nor sentenced should not be ordered to go to prison for correctional purposes.
28. This would call upon the State Department of Children Services in the course of safeguarding children’s rights to carry out necessary reforms to take note of the lacuna in the child justice system and come up with proper rehabilitation institutions that would accommodate children who commit serious offences to be placed for a longer duration.
29. On the sentence imposed, a similar matter was determined in K v ODPP (Miscellaneous Criminal Revision E024 of 2026) [2026] 6342 (KLR) where the court delivered itself thus;
“Sentencing a fifteen-year-old child to serve part of the sentence in prison after attaining majority age defeats the entire philosophy of the child justice system. Such an order disregards the rehabilitative objective contemplated under the Constitution, the Children Act and international instruments including the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.”
30. This crystalizes in the fact that the sentence meted out was illegal. Since the status was determined by the age at the time of the offence and even during sentencing he was a minor. He was supposed to be punished as a child.
31. It is noteworthy that the minor committed an act of indecency which is a serious sexual offence but to waive the case to be transferred to an adult prison would call for facing a formal adult conviction and sentencing which was not the case as the Subject was a minor.
32. The upshot is that I call to this court the order of the trial court which I quash and set aside then substitute it with an order that the Subject committed an Indecent Act contrary to Section 11(1) of the Sexual Offences Act hence reach a finding of guilt.
33. It is hence the deposition of the court that the Subject committed the act which calls for a rehabilitative action which shall be served at the Shikusa Borstal Institution for a period of 3 years until he attains the age of majority.
34. And upon release from the Borstal Institution, pursuant to the provisions of Section 239(1)(c) of the Children Act, he will be required to be under Probation Supervision for a period of three (3) years.
35. It is so ordered.