(Being an application for revision of punishment in Msambweni Magistrates Criminal Case No. E029 of 2025 delivered on 3rd February 2025 by Hon. Leah Kabaria (PM)).
JUDGMENT
1. This file has been placed before this court by way of a letter dated 7/2/2025 from the Magistrates Court, Msambweni for revision of the punishment imposed upon the applicant on grounds that the punishment imposed was a prison term when in fact the offender is a child aged 17 years.
2. The trial court file has been made available to this court and this court has perused the same and confirmed the issues the subject of the request. The applicant was found guilty of the offence of stealing contrary to section 268 of the Penal Code (Cap. 63) Laws of Kenya that on 3/1/2025 at around 1300 Hours in Vanga village of Vanga location of Lungalunga Sub-County within Kwale County he stole two smart phones an i-Phone SE and Samsung A3 10 valued at KShs 52,000/= the property of Mwanamkasi Omar Hussein.
3. The applicant pleaded guilty to the charge and he was found guilty and given a punishment of ten (10)(sic) imprisonment on the date of plea on 3/2/2025. The period is not indicated to be years or months.
4. The learned trial magistrate realized later in the day that in fact, the charge sheet had indicated the age of the offender as 17 years, meaning that he was a child and not subject to a punishment of imprisonment. A child Health Card was placed before the learned trial magistrate bearing the name of Hamza Omari Kitwana showing the date of birth as 2/1/2009. The learned trial magistrate was not satisfied that the document referred to the offender for two reasons. First, there is a difference in the third name whereby the charge sheet had captured his name as Hanji and not Kitwana as indicated in the Child Health Card. Secondly, the offender was indicating that he was borne in 2007 and not 2009 as indicated in the Child Health Card. She therefore directed that an age assessment of the offender be conducted.
5. On 5/2/2025, the age assessment report from Msambweni County Referral hospital was presented to court confirming that the offender was found to be aged about 17 years. He was therefore a minor in terms of the Children Act (Cap. 141) Laws of Kenya.
6. Therefore, although the offender was liable to be held criminally responsible in terms of Section 14 of the Penal Code and section 221 of the Children Act, the trial court ought not to have imposed a prison term as a punishment for him. An alternative punishment should have been considered. S. 238(1) of the Children Act places a clear restriction upon punishing a child offender to a term of imprisonment. Therefore, there is an error in the manner the trial court proceeded to impose the punishment upon the offender.
7. Article 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts to call for a magistrate’s court file to the High Court for its consideration. It provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
8. In furtherance of the constitutional provision, section 362 CPC enables the High Court to:
“call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court.”
9. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
10. As such and invoking the powers of review granted to the High Court by Section 362 of the Criminal Procedure Code, this court hereby sets aside the ten (10) month term of imprisonment imposed upon the offender.
11. The trial magistrate is hereby directed to deal with the offender in the alternative suitable for a child offender as provided for under section 239(1) of the Children Act (Cap. 141) Laws of Kenya.
12. Mention on 11/2/2025 before Msambweni Magistrates Courts for the court to deal appropriately with the child.
13. Orders accordingly.
14. Ruling delivered, dated and signed at Kwale on the Virtual Platform, Teams this 10th day of February 2025.
ANDAYI W. F.
JUDGE
JUDGMENT
1. This file has been placed before this court by way of a letter dated 7/2/2025 from the Magistrates Court, Msambweni for revision of the punishment imposed upon the applicant on grounds that the punishment imposed was a prison term when in fact the offender is a child aged 17 years.
2. The trial court file has been made available to this court and this court has perused the same and confirmed the issues the subject of the request. The applicant was found guilty of the offence of stealing contrary to section 268 of the Penal Code (Cap. 63) Laws of Kenya that on 3/1/2025 at around 1300 Hours in Vanga village of Vanga location of Lungalunga Sub-County within Kwale County he stole two smart phones an i-Phone SE and Samsung A3 10 valued at KShs 52,000/= the property of Mwanamkasi Omar Hussein.
3. The applicant pleaded guilty to the charge and he was found guilty and given a punishment of ten (10)(sic) imprisonment on the date of plea on 3/2/2025. The period is not indicated to be years or months.
4. The learned trial magistrate realized later in the day that in fact, the charge sheet had indicated the age of the offender as 17 years, meaning that he was a child and not subject to a punishment of imprisonment. A child Health Card was placed before the learned trial magistrate bearing the name of Hamza Omari Kitwana showing the date of birth as 2/1/2009. The learned trial magistrate was not satisfied that the document referred to the offender for two reasons. First, there is a difference in the third name whereby the charge sheet had captured his name as Hanji and not Kitwana as indicated in the Child Health Card. Secondly, the offender was indicating that he was borne in 2007 and not 2009 as indicated in the Child Health Card. She therefore directed that an age assessment of the offender be conducted.
5. On 5/2/2025, the age assessment report from Msambweni County Referral hospital was presented to court confirming that the offender was found to be aged about 17 years. He was therefore a minor in terms of the Children Act (Cap. 141) Laws of Kenya.
6. Therefore, although the offender was liable to be held criminally responsible in terms of Section 14 of the Penal Code and section 221 of the Children Act, the trial court ought not to have imposed a prison term as a punishment for him. An alternative punishment should have been considered. S. 238(1) of the Children Act places a clear restriction upon punishing a child offender to a term of imprisonment. Therefore, there is an error in the manner the trial court proceeded to impose the punishment upon the offender.
7. Article 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts to call for a magistrate’s court file to the High Court for its consideration. It provides as follows:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
8. In furtherance of the constitutional provision, section 362 CPC enables the High Court to:
“call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court.”
9. Section 364 CPC further provides for the powers of the High Court on revision thus:
(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—
(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse the order.
(c) …
10. As such and invoking the powers of review granted to the High Court by Section 362 of the Criminal Procedure Code, this court hereby sets aside the ten (10) month term of imprisonment imposed upon the offender.
11. The trial magistrate is hereby directed to deal with the offender in the alternative suitable for a child offender as provided for under section 239(1) of the Children Act (Cap. 141) Laws of Kenya.
12. Mention on 11/2/2025 before Msambweni Magistrates Courts for the court to deal appropriately with the child.
13. Orders accordingly.
14. Ruling delivered, dated and signed at Kwale on the Virtual Platform, Teams this 10th day of February 2025.
ANDAYI W. F.
JUDGE