The High Court has called for legislative changes to address a significant gap in the Children Act which lacks clear guidelines for handling cases where individuals charged as minors are convicted after turning 18.

Justice Heston Nyaga, in a recent decision, highlighted a crucial flaw in the law, which leaves young offenders, particularly those between the ages of 14 and 18, in a legal limbo leading to potential injustices.

“The Children Act, 2022, does not adequately address the complexity of situations where an accused is charged as a child but later found guilty as an adult,” Justice Nyaga said.
He explained that the law fails to offer protection for young offenders who are charged as minors but reach adulthood before the conclusion of their trial.

The case at the centre of the ruling involved a man (named witheld), who had been convicted by a Resident Magistrate at the Molo Law Courts for defiling a 14-year-old girl.
According to the charge sheet, the offence was committed on July 9, 2010, when the appellant was 14 years old.

The trial began on July 20, 2011, and concluded on December 1, 2014. The appellant had turned 18 by the time of conviction, having been tried and found guilty of defilement under Section 8(1) of the Sexual Offences Act.

Despite being a minor at the time of the offence, the appellant was sentenced to 20 years in prison, as the trial court adhered to the mandatory minimum sentence for sexual offences.

Aggrieved, the man through lawyer Peter Bore, appealed at the High Court arguing that the trial court had erred by imposing the adult sentence despite him being a minor when the crime was committed.

Bore suggested that the delay in the trial and the appellant’s transition into adulthood during the trial should have been considered in determining his sentence.

Justice Nyaga agreed with the appellant’s argument, finding that the trial court had failed to take into account the appellant’s age at the time of the offence.

In the judgment, he pointed out that although the appellant committed the offence as a child, the trial court had treated him as an adult for sentencing purposes.

“My take is that the appellant ought to have been sentenced as a child and not as an adult,” Justice Nyaga stated.

He added: “I say so because the appellant committed the offence as a child, not as an adult, and consequently, he should have been punished as a child.”

Nyaga noted that the trial court should have applied Section 8(7) of the Sexual Offences Act, which provides for minors convicted of sexual offences to be sentenced in accordance with the Borstal Institutions Act and the Children’s Act.

“As can be seen, the dilemma that the trial court faced, and this court faces, is not a novel one. The only distinction is that the decisions cited above were made under the Children Act, 2001, which has since been repealed by the Children Act, 2022,” the judge said.

While acknowledging the Children Act, 2022 as a milestone in securing the rights of children, Justice Nyaga pointed out that it failed to address the issue of how to treat certain children in conflict with the law, particularly those in the 14 to 18 age group.

“The Act, just like its predecessor, seems to throw such children into the vagaries and uncertainty of the law. While the law has taken care of children in conflict with the law up to the age of 14, it offers no similar protection to those above that age,” Justice Nyaga said.

“Why call them children and then abandon them at the most crucial moment, just when the court is determining their fate?” He posed.

Justice Nyaga emphasized that the Children Act, 2022 fails to adequately protect children over the age 14 who may be charged as minors but turn 18 before their trial concludes.

He noted that sections 221 and 239 of the Act fail to provide sufficient protection for minors aged 14 and above who are found guilty as adults due to delays in their trial process.

“There is a lacuna in sections 221 and 239 of the Children Act, 2022, which fails to offer adequate protection to minors above the age of 14 who are charged as children but found guilty as adults,” the judge noted.

Nyaga called for immediate legislative reform to close this gap, stressing the need for clear guidelines on how to handle such cases.