Justice Muguru Thande ruled that jailing children found guilty of committing criminal offences should be considered as a last resort and only in exceptional circumstances, with detention being for the shortest appropriate period of time.
“The reality in which we live is that children are and will continue to be in conflict with the law. But when this happens, they should not be dealt with as adults. Where a child is found guilty of an offence, the court, taking all circumstances in consideration should discharge such child under Section 35(1) of the Penal Code,” ruled the judge.
Section 35(1) of the Kenyan Penal Code 35 provides that a court may discharge a convicted person if it is of the opinion that it is unsuitable to inflict punishment on the offender.
Justice Thande added that under Section 238(1) of the Children Act, no court shall order the imprisonment of a child in accordance with constitutional principles which provides that children’s best interests are of paramount importance in every matter concerning them.
The judge made the decision while discharging a 17-year-old boy who was jailed for three months by a magistrate’s court after being found guilty of the offence of cutting, felling and removing forest produce.
The teenage boy appeared before the Kilifi Law Courts on 24 January on a charge of destroying forest trees. The trial magistrate, Daniel Sitati, convicted him and sentenced him to pay a fine of Kshs. 50 000 ($342) and, in default, serve three months imprisonment.
Being unable to raise the fine, the teenage boy was condemned to serve the three months custodial sentence.
Justice Thande however ruled that a custodial sentence was not warranted in the circumstances of the child’s age and that the magistrate should have been guided by the constitutional need to protect the rights of vulnerable groups within society which include children.
“The guilt of the minor of the offence with which he was charged is not in doubt. 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,” ruled Justice Thande.
She added that under Article 53 of the constitution, every child has the right not to be detained except as a measure of last resort and, when detained, the child must be held for the shortest appropriate period of time – separate from adults and in conditions that take account of the child’s sex and age.
Justice Thande stated that where a child is tried for an offence and the court is satisfied as to their guilt, the court may discharge the child or make a probation order against the offender.
Alternatively, she ruled, the court may commit the child to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender.
If the child is between 12 and 15 years of age, she said, the court should make an order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances.
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