[2010] KEHC 1107 (KLR)
The High Court found that the trial court failed to consider the best interests of the child, particularly the very young age of the child (four months), when sentencing the appellant to three years imprisonment for child neglect. The court held that imprisoning the mother would not serve the interests of the child,...
Source-derived case information.
- Citation
- [2010] KEHC 1107 (KLR)
- Parties
- Appellant: Joyce Nasimiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 56 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant released
- Judges
- PM Mwilu
- Legal Topics
- Child Neglect, Sentencing Principles, Best Interests of Child
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Nasimiyu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of three years imprisonment for child neglect was excessive in the circumstances.
- 2 Whether the trial court considered the best interests of the child as required under the Children Act.
Ratio Decidendi
The High Court found that the trial court failed to consider the best interests of the child, particularly the very young age of the child (four months), when sentencing the appellant to three years imprisonment for child neglect. The court held that imprisoning the mother would not serve the interests of the child, and that the welfare of the child must be the paramount concern as mandated by the Children Act. Consequently, the conviction was quashed and the sentence set aside, with the appellant ordered to be released unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant released
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CRIMINAL APPEAL NO. 56 OF 2008
JOYCE NASIMIYU …………………………………….APPELLANT
VERSUS
REPUBLIC ……………………………………………RESPONDENT
(Being an appeal from the Conviction and Sentence of the Hon. Resident Magistrate A. B. Mongare (Mrs) in Eldoret Chief Magistrate’s Court Children’s Case No. 19 of 2008 passed on 18th April, 2008)
J U D G M E N T
The appellant, a mother of four children had some differences with her husband and she went away from home leaving all four children the youngest of whom was then aged four months, behind.The husband took the youngest child to his first wife and then went to look for the second wife, this appellant in
Nairobi.He traced her there brought her back home and reported her to the authorities and she was charged with neglecting a child contrary to section 127(1) (a) of the Children Act of 2001. She pleaded guilty and was sentenced to serve 3 years imprisonment.She was dissatisfied and brought this appeal wherein she raises the grounds that the sentence was harsh in the circumstances of the case and mitigation was not considered.
The State conceded that the sentence was excessive in the circumstances of the case.
Under the Children Act the welfare of the child is the paramount concern.The interests of the child must be jealously guarded at all times.I do not find that sending the mother away to prison for three years would serve the interests of her very young child of four months.Courts are enjoined to always consider the best interests of the child while handling cases of this nature.The trial court failed to do that.I will correct it by quashing the conviction and setting aside the sentence.I set the appellant at liberty forthwith unless she is otherwise lawfully held.
Those are the orders of this court.
DATED SIGNED AND DELIVERED AT ELDORET THIS 7TH DAY OF OCTOBER, 2010.
P.M. MWILU
JUDGE
In the presence of;
No appearance for the Appellant
No appearance for the Advocate for the Appellant
Kabaka – Counsel for the State
Andrew Omwenga – Court Clerk
P.M. MWILU
JUDGE