By Shadrack Muyesu
The petitioner was arrested on 14th February 2016 and charged at Senior Resident Magistrates Court, Mbita, on February 15 2016 with the offence of defilement contrary to Section 8(1) as read with 8(4) of the Sexual Offences Act. He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the same Act in Criminal Case No 7 of 2016. He pleaded not guilty to the charges and the matter proceeded to hearing where the complainant and a clinical officer testified – he was unrepresented.
Later on the matter was listed during the children’s service week (November 14-18, 2016) which was when an advocate was appointed to represent him in the matter. Consequently, the Petitioner told his advocate that at the time of the alleged offence he was 16 years of age, whereupon the advocate made an application for the age assessment report on November 17. The petitioner claims that he had informed the trial court on March 15 2016 that he was a minor being held in a prison for adults and although the trial magistrate directed that he be held at Magunga Police Station to be escorted to hospital for age assessment, the order was not complied with. The trial court did not follow up on the issue to date, and no age assessment report was presented.
Due to the aforementioned, the Petitioner prayed that the charges pending before Mbita court be quashed and the court make a declaration that the initiation and continued prosecution of Criminal Case No 7 of 2016 was discriminatory and denied him the equal right and protection of the law. The Petitioner also sought a declaration that his being detained in an adult remand prison was unconstitutional and also violated his right to education. He urged the court to declare that in the best interest of the child, the petitioner be released forthwith. Finally, he sought damages as redress in respect of the above rights that were infringed.
The court had to determine whether the Petitioner was a minor and therefore, in light of the facts, was entitled to equal treatment before the courts; Whether the Petitioner’s right to fair trial was infringed (Article 50 of the constitution) and whether also the Petitioner’s constitutional rights as a child were infringed.
Applying itself to these issues, the court relied on Article 23(1) of Constitution which gave the High Court jurisdiction in accordance with Article 165, to hear and determine applications for redress of denial, violation and infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The court reiterated that the High Court has supervisory jurisdiction over administrative actions in ensuring that the Constitution of the Republic of Kenya is upheld by all the administrative bodies as well as the lower courts.
On whether the petitioner was a minor, the court found that by listing the matter for hearing during the children service week, the second respondent had made a legal assumption that the petitioner was a minor and thus ought to have treated him as such. In making this finding the Court relied on 143(1) of the Children Act which states:
“Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that such person is under eighteen years of age, the court shall make due inquiry as to the age of that person and for that purpose shall take such evidence, including medical evidence, as it may require, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of that person so brought before it shall, for the purposes of this Act and of all proceedings thereunder, be deemed to be the true age of the person.”
The court then had to determine whether the petitioner’s right to equal treatment had been infringed upon. To do so, it had to answer the question whether Section 8 of the Sexual Offences Act distinguished between girls and boys. Inter alia Section 8 states that any person who causes penetration with a child is guilty with of an offence termed defilement.
Associating itself with the decision of Ochieng J in Eldoret Constitutional Petition No 6 of 2013, the court found that it did not. The court concluded that in a crime of defilement where all the participants were minors, all (the minors) had to be charged together as they both needed protection against sexual activities. In doing so, the court relied on the decision of Makau J in ‘G.O. versus Republic’ Siaya Criminal Appeal No.155 of 2016 and that of the House of Lords in ‘R vs. G (Appellant)’ where the Baroness Hale of Richmond in her opinion stated that sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted.
As to whether the petitioner’s right to a fair trial was infringed upon the court found that failure to furnish the petitioner with witness statements despite making the request on six different occasions – having received the statements (belatedly), failure to order a fresh trial as the petitioner had requested, the 1st Respondent’s failure to avail all the witness statements and the failure to provide the petitioner with legal representation at the expense of the State all amounted to a gross violation of the Petitioner’s right to a fair trial. To arrive at this finding, the court relied on, among others, Article 50 of the Constitution of Kenya 2010 and Article 37 (d) of the United Nations Convention on the Rights of the Child
The last issue was whether the respondents erred in allowing the detention of the petitioner in an adult facility. Whereas the 1st Respondent stood by its earlier claims that the petitioner could not be considered a minor since the assessment report had not been provided, the court, having found that the 2nd Respondents had correctly assumed the petitioner to be a minor, ruled that the petitioner ought to have been held separately from adults.
The court was keen to emphasize that a child remains a child whether the victim of an offence or a child in conflict with the law. Indeed, Policy No 5.10 of The National Children Policy states that ALL children deserve protection in matters regarding the law, whether they are in conflict with the law or requiring legal assistance!
In toto the court found that the rights of the petitioner had been grossly violated for more than year and therefore, quashed the proceedings pending at Mbita Law Courts. It further ordered the petitioner Sh200,000 in damages as compensation for violation for the said rights. (