The Children Act, 2022 provides special protections for children who come into contact with the criminal justice system, ensuring that their best interests remain paramount.

Who is a Child in Conflict with the Law?

A child is any person under the age of 18 years. A child in conflict with the law is a child who is accused of committing a criminal offence.

Age of Criminal Responsibility

Under the Children Act, 2022, children below the age of 12 years cannot be held criminally responsible for offences. Special considerations apply to children between 12 and 14 years, while children aged 14 to 17 years may be held criminally responsible, subject to the protections provided by law.

Rights of a Child Upon Arrest

A child has the right to:

• Be informed of the charges in a language they understand.
• Remain silent.
• Legal representation.
• The presence of a parent, guardian, or children’s officer during questioning.
• Privacy during arrest, investigation, and court proceedings.
• A fair trial and the right to appeal.

Detention and Custody

Detention of a child is a measure of last resort and should only be used for the shortest appropriate period. Children must be held separately from adults and, where detention is necessary, should be placed in appropriate child-specific facilities rather than adult prisons.

Children’s Courts

Most offences involving children are heard in designated Children’s Courts, which operate in a manner that protects the child’s privacy. In limited circumstances, such as murder charges, matters may be heard by the High Court while preserving the child’s statutory protections.

Possible Court Orders

Where a child is found responsible for an offence, the court focuses on rehabilitation rather than punishment. Orders may include:

• Conditional discharge.
• Community service.
• Compensation or restitution.
• Parental supervision orders.
• Rehabilitation and supervision programs.
• Placement in approved child rehabilitation facilities where necessary.

The law prohibits the imposition of the death penalty and imprisonment upon a child offender. However, where an offender was below the age of eighteen (18) years at the time of commission of the offence but the offender has attained the age of majority by the time of sentencing, the court may, depending on the circumstances of the case and the applicable law, impose a custodial sentence in an adult correctional facility instead of committing the offender to a child rehabilitation institution.

Juvenile Records and Future Opportunities

Although juvenile records do not automatically disappear upon turning 18, Kenyan courts have recognized that retaining childhood criminal records into adulthood may violate constitutional rights and negatively affect employment, education, and travel opportunities. Courts may order expungement in appropriate cases.

In Kimathi v Inspector General of the Police Service & 5 others (Constitutional Petition E007 of 2024) [2026] KEHC 2918 (KLR) The court held that having to carry childhood burden into adult life is not a situation any citizen should undergo, and ordered expungement of the record and issuance of a clean certificate of good conduct.

Parental Responsibility

In certain circumstances, a court may require a parent or guardian to pay fines, compensation, or costs arising from a child’s offence, after giving them an opportunity to be heard.

How Can effective legal representation can help.

For Children and Their Families

• Provide urgent legal representation following arrest.
• Protect the child’s constitutional and statutory rights during investigations and court proceedings.
• Attend police interviews and ensure proper procedures are followed.
• Apply for release on bond or other non-custodial measures.
• Represent children before Children’s Courts and other courts where necessary.
• Advise parents and guardians on their legal rights and responsibilities.
• Assist with appeals and applications relating to juvenile records and expungement.

For Victims of Offences Involving Children

• Advise victims and their families on their rights throughout the criminal justice process.
• Assist in reporting offences and engaging with investigating authorities.
• Represent victims during court proceedings as permitted by the Victim Protection Act.
• Pursue compensation and restitution orders where available.
• Provide legal guidance on child protection and safeguarding measures.
• Liaise with relevant agencies to ensure the best interests of affected children are protected.

Do not hesitate to reach out to us for support in securing your children’s rights.

Njuru & Company Advocates

Email: law@njuruadv.co.ke           Tel: 0718784960