POO (A Minor) v Director of Public Prosecutions & another (Constitutional Petition 1 of 2017) [2017] KEHC 8341 (KLR) (17 August 2017) (Judgment)

Facts

The petitioner was charged with defilement and an alternative charge of indecent act with a child. He claimed to be 16 years old at the time of the alleged offence.

Issues

1. Whether minors had the legal capacity to consent to sex.
2. Whether minors who had sexual intercourse should both be charged with delement.
3. Whether age assessment of an accused person could be done by observation and common sense.
4. Whether the state discriminated against the petitioner by charging him alone as opposed to alongside the complainant for delement as they were both minors and incapable of consent.
5. What should be taken into account by a court when a child was the accused person.
6. Whether the State violated the rights of the petitioner by detaining him (a child) with adults.

Reasoning

The court held that age could be proved by birth certificate, the victim's parents or guardian, and by observation and common sense. The court also held that the right of the petitioner not to be detained and when detained to be held separate from adults was infringed.

Outcome

The court proposed that the only legal avenue available is to grant orders that the age assessment be done and the counsel on record be at liberty either to recall witnesses or make the application before the trial court for the case to start de novo.

Authorities cited