- On January 24 this year, the Kilifi Magistrates Court convicted and sentenced him to pay a fine of Sh50,000 and in default serve three months imprisonment.
- Being unable to raise the fine, Sammy started serving the custodial sentence.
Image: FILE
A convict has been discharged from custody after the court found that his age does not warrant for imprisonment.
In the case, Sammy (not his real name) was charged before Kilifi Law Courts with cutting, felling and removing forest produce contrary to the Forest Produce Conservation and Management Act, 2006.
On January 24 this year, the Kilifi Magistrates Court convicted and sentenced him to pay a fine of Sh50,000 and in default serve three months imprisonment.
Being unable to raise the fine, Sammy started serving the custodial sentence.
Six days after the sentence on January 30, Malindi High Court received a letter from Kilifi Law Courts Chief Magistrate JM Nangea, applying for a revision of the decision on account of the boy's age.
There, the court established that Sammy is 17 years old as per a copy of his birth certificate.
"I have perused the lower court record and note that the Applicant's (Sammy) birth certificate indicates that he was born on 2.3.07. He will be 17 years old on 2.3.24," Justice Thande Mugure ruled.
She noted that Article 53(1)(f) provides that "Every child has the right not to be detained, except as a measure of last resort and when detained, to be held for the shortest appropriate period and, separate from adults and in conditions that take account of the child's sex and age."
Further, the Children Act states that no court shall order the imprisonment of a child.
Pointing out that it is a reality that children are and will continue to break the law, Justice Thande however said when this happens, they ought to be treated as children, not adults.
She cited Section 239 of the Children Act which provides for methods to deal with such minors including discharging them under Section 35(1) of the Penal Code.
It states that "Where a court by or before which a person is convicted of an offense is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified therein".
Using the aforestated Section, Justice Thande allowed the application for revision and set aside the sentence imposed against Sammy.
"Pursuant to the provisions of Section 239(1)(a) of the Children Act, I discharge the applicant absolutely under Section 35(1) of the Penal Code," the court ruled on February 9.