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What Kenyan law says about children who commit murder

What is the fate of the form one girl linked to the Moi Girls fire?

Though not yet charged with any crime, the form one student has been detained by the police as the main suspect for the school’s Kabaranet dormitory that was burnt of Saturday leading to the death of 9 girls and scores being injured.

This has sparked various reactions from Kenyans with most blaming the school and trying to find out,w what sort of reprieve the courts will give the bereaved parents.

Here’s a few facts about Kenyan law and children criminal cases.


Age of criminal responsibility

This is the age below which a child cannot be held to be criminally responsible even when they have committed a crime. According the Kenyan Penal Code Act 63, the age of criminal responsibility is eight (8) years and above. While this is a young number, the court must conclude that the child at the time of performing the crime understood that what they were doing was against the law. If they were unaware then they cannot be sued. This rule is limited to children above 8 years of age but below 12 years old.

Things the court will consider

Just like every other type of law, the court must consider certain principles to ensure that the case is handled in such a way that will cater for the child’s rights according to the Children Law Act. The court must consider the Best interest principle which states that all actions concerning children must be undertaken with their best interests at heart.

The court must also follow the non-discrimination principle that dictates that a child brought forth in the courts of law shall not be victimized on ground of origin, sex, religion, creed, custom, language, opinion, conscience, color, birth, social, political, economic or other status, race, disability, tribe residence or local connection.


And at the end of it all the maximum survival and development principle must have been adhered to. This means that whatever the direction the case will take in court, all actions affecting the child should be directed in ensuring that her life is protected and that she develops in the best possible way.

Can her parents be sued?

In a criminal case no. As the prime suspect the girl will be brought before the court as her own person but she will be prosecuted in the Children’s court.

What about the school?

According to Children and family lawyer, Elkana Mogaka the school can be sued, “The bereaved parents have the right to sue the school for not meeting the safety standards given in a report written by the Ministry of Education.”


Cultish allegations?

Allegations by other students reveal that the said suspect was suicidal and had attempted to kill herself three times. According to the Daily Nation, investigations reveal that the suspect told the police that she wanted to be a writer after completing school with a special inclination to 'magic and cultish' stories.

This cannot be taken as admissible evidence in court unless proven, however the court could demand for a psychological analysis of her mental state to know if she was in her right mind when performing the alleged crime.

What would her sentence look like?

The court has the discretion of determine what her sentence would be if found guilty of the crimes charged. This will be totally dictated by the law and the facts of the case as presented by her lawyer and the prosecution.


However it will be less severe as it would have been is she was an adult. There are various juvenile stations that the girl could be taken to in Nairobi if the court finds her guilty. If not, she will be set free to continue with life as it were before the incident. Her readmission to the school is at her parent’s and the school’s discretion.


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