FORTUITY FOR THE 17-YEAR-OLD AS THE JUDGE COMMUTES HIS JAIL TERM DUE TO HIS AGE

 A prisoner was released from custody when the court determined that his age did not justify incarceration.

Sammy, who is not his real name, was accused of violating the Forest Produce Conservation and Management Act, 2006 by falling, cutting, and removing forest produce in front of Kilifi Law Courts.

The Kilifi Magistrates Court found him guilty on January 24 of this year and sentenced him to pay a fine of Sh50,000 and serve three months in jail if he didn't pay.

Sammy began serving the jail sentence after failing to raise the fine.

On January 30, six days following the boy's sentencing, Kilifi Law Courts Chief Magistrate JM Nangea wrote to the Malindi High Court requesting a review of the ruling due to the boy's age.

Sammy's age was determined by the court based on a copy of his birth certificate there.

"After reading the lower court record, I noticed that Sammy, the applicant, was born on 2.3.07, according to his birth certificate. On 2.3.24, he will turn 17 years old, Judge Thande Mugure declared.

She pointed out that Article 53(1)(f) states 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."

Furthermore, according to the Children Act, a judge cannot mandate that a kid be imprisoned.

Justice Thande noted that while it is true that kids have broken the law in the past and will continue to do so, they should be treated like kids instead of adults in these situations.

She noted Section 239 of the Children Act, which outlines procedures for dealing with these kids, including the Penal Code's Section 35(1) discharge.

It provides: "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 offense 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, or, if the court thinks fit, discharging him subject to the condition that he commits no offense during such period, not exceeding twelve months from the date of the order, as may be specified therein".

 Using the previously mentioned Section, Justice Thande granted the request for modification and "Under 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 judge wrote on February 9.