[2006] KEHC 492 (KLR)
The court found that the three-year jail sentence imposed on the appellant for child neglect was excessive and failed to consider the best interests of the children, who would be left without parental care if the appellant remained incarcerated. The court noted that the appellant's actions were motivated by the need...
Source-derived case information.
- Citation
- [2006] KEHC 492 (KLR)
- Parties
- Appellant: Lydia Mwendwa Kitheka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 86 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to period served; appellant released forthwith
- Judges
- DA Onyancha
- 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
Lydia Mwendwa Kitheka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed on the appellant for child neglect was harsh and excessive in the circumstances.
- 2 Whether the interests of the children were properly considered in sentencing.
Ratio Decidendi
The court found that the three-year jail sentence imposed on the appellant for child neglect was excessive and failed to consider the best interests of the children, who would be left without parental care if the appellant remained incarcerated. The court noted that the appellant's actions were motivated by the need to provide for her children and that she had already served six months in jail, which was deemed sufficient punishment. The agreement of the state counsel with the appellant's position further supported the reduction of the sentence. The court concluded that reducing the sentence to time served would better serve the interests of justice and the welfare of the children.
Court Disposition
sentence reduced to period served; appellant released forthwith
Orders
- The jail sentence of 3 years is hereby reduced to the period she has so far served.
- Appellant is hereby ordered released forthwith.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Criminal Appeal 86 of 2006
LYDIA MWENDWA KITHEKA ……………………… APPELLANT
VERSUS
REPUBLIC ……………....….........…………………… PROSECUTOR
JUDGEMENT
The appellant relies on her grounds of appeal. She argues that the sentence is harsh and excessive and totally unsuitable in the circumstances of the case as it does not protect the children whose interest should have guided the court in sentencing. Mr O’Mirera, for the Attorney General fully agrees. The court has considered the circumstances of the case and agrees with both. The charge against the accused was neglect of children Contrary to Section 127 (1) of the children’s Act, Cap 586 of the Laws of Kenya. Facts show that although accused pleaded guilty to the charge, she also raised the fact that she used to leave the children sometimes alone because she went to look for money to feed them. This should have been taken into account but was not.
Further, it is difficult to understand how sending the accused to jail for along period (3) years was going to assist the children who would now be left without a parent. There is no information presently where the children are and probably, they must be suffering.
I have considered the circumstances of this case. The appellant has served jail sentence for 6 months. In my view it is sufficient punishment. She promises to go back and look after her children. I wish to agree with her. And since the state counsel is in agreement the appellant’s sentence ill be reduced.
Order:
The jail sentence of 3 years is hereby reduced to the period she has so far served and appellant is hereby ordered released forthwith. It is so ordered.
Dated and delivered at Machakos on 19th day of September, 2006.
D.A. ONYANCHA
JUDGE