[2022] KEHC 10170 (KLR)

ODPP v MKB (Criminal Revision E012 of 2021) [2022] KEHC 10170 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10170 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Revision E012 of 2021

TM Matheka, J

July 5, 2022

Between

ODPP

Republic

and

MKB

Respondent

Judgment

1. Fourteen (14) year old MKB is the third born child of ES (deceased) and BJ. When his father died, PKC moved in with his mother and became his de facto stepfather. As a family they were not happy with this development but they sat with it. It would appear that this resentment was simmering.

2. It appears that PKC tried to enforce his acquired status.

3. From the facts presented by the prosecution and the Probation Officer’s Pre-Sentence Report dated 6th June 2022 on 10th February 2022 MKB found his seed potato seedlings missing. It turned out that PK had sold them. MKB demanded an explanation. A disagreement ensued in which P became violent and began to beat MKB while chasing him out of the home. MKB picked an arrow and threw it at P to slow him, it hit him in the thigh. P fell down, bleeding. MKB ran away, but one Willy Chelangat who was nearby raised alarm. People came and took P to Olenguruone Sub County Hospital. However, Paul succumbed to the injuries. That arrow is alleged to have had poison.

4. According to MKB he had only intended to immobilize Paul.

5. MKB was later arrested.

6. A post mortem was conducted by Dr. George Biketi on 19th February 2022. He determined the cause of death to be;“Penetrating left thigh injury with trauma to the femoral vessels leading to massive bleeding resulting from arrow head injury to the thigh.”

7. MKB was charged with Murder Contrary to Section 203 as read with 204 of the Penal Code. That on 10th February 2022 at Kapnanda Village in Tinet Location Kuresoi South Sub County within Nakuru County he murdered PKC. A psychiatric evaluation was conducted on 23rd February 2022. He was a class eight (8) pupil. Dr. Karanja consultant Psychiatrist formed the opinion that the subject suffered from no psychopathology. He was aware of the charge and able to follow the proceedings.

8. On 25th February 2022, while represented by Ms. Chemngetich, the court took plea. He denied the charge of murder and a plea of not guilty was entered.

9. Meanwhile the court was told that he was supposed to sit his Kenya Certificate of Primary Education (KCPE) exams. In fact, after the plea, when asked by whether he had any question, he only asked “nitafanya mtihani?”.

10. Every Kenyan who has sat exams knows the kind of rigorous preparations that ho into preparing for the same. There the usual frenzy in school to get the exam class to spend all their school time and even at home preparing either by reading or working on past papers. Whatever it takes. And it is drummed into the heads of every child that that exam is the key to the future, not any future but to the good future.

11. So I could feel, and relate to the weight of that question. Was this how his good future was going to end?

12. Evidently he must have been preparing for the exam. It was about a week to the same. It is a highly stressful time for Kenyan pupils and students, and was now worried that now his whole future had been scattered.

13. The Children Act has foreseen circumstances such as this in that in dealing with child offenders the first line of treatment is to rehabilitate and reintegrate. The maintenance, the training and education of this child is paramount, irrespective of the fact that the child is alleged to have committed an offence. This is ingrained in most of our communities where like in mine, Akamba, the saying goes, ‘mũtĩ ũkonzawa wĩ mwĩũ. i.e. to say you can only bend a tree when it is still sapling. When it is grown into a tree it is not malleable. This is philosophy is to be found in Section 187 of the Children Act, which makes the mandatory provision for every court dealing with a child to take into consideration the welfare of that child. It states:“(1)Every court in dealing with a child who is brought before it shall have regard to the best interests of the child and shall, in a proper case, take steps for removing him from undesirable surroundings and for securing that proper provision be made for his maintenance, education and training.(2)Every child in remand or custodial care who is ill, or who complains of illness, (physical or mental), shall be examined promptly by a qualified medical practitioner and treated.”

14. This provision is to guide the court at the moment the child is brought before it, at the first point of contact with the court. This is distinguishable with what is to happen at the end of the trial. Those provisions are to be found at Section 191 of the Children Act.

15. Hence it became my Constitutional and statutory duty to deal with the welfare of the subject before proceeding to the issue of the charge facing him. Having been informed that Kenya Certificate of Primary Education (KCPE) examinations were scheduled for 7th March 2022 and rehearsals at his school on 5th March 2022, I issued Summons for the elder sister, as it was said the mother had not visited him from the date of arrest, to appear in court to assist the court in making preparation for the subject to sit the examination.

16. However, matters turned out that the mother had not abandoned her son, and on 1st March 2022 she appeared in court together with a brother to the subject’s father (an uncle). The uncle one JKS was willing to go back with the subject, but his home was too close to the home of the victim and the prosecution through Ms. Murunga was fearful for the safety of the boy. The parents were aware of that insecurity. The court was advised to detain the boy for his own safety.

17. The court had to deal with the preliminary issues of the welfare of the boy, to sit his examination. Many options, including his being detained at the nearest police station to the school, and escorted daily to school for the examinations were made and police were ready to do this for him. This of course would have its down side, the stigma that comes with such circumstances.

18. As matters would be, a better option presented itself when Nakuru Children Remand Home upon enquiry informed the court that MKB could actually take his exam from the Remand Home as the Sub County Education Office could declare the Remand home an Examination Centre.

19. To that end the parents provided a letter from the Head Teacher of his primary school, and the Volunteer Children Officer at the Remand Home Mr. Gitonga did the leg work, and finally obtained a letter from the Sub County Education Officer that the subject could sit his KCPE Examination at the Remand Home. This was on 3rd March 2022. The matter was deferred to 15th March 2022 after the examinations.

20. He was produced on 23rd March 2022, confirmed he had sat his examinations and hearing dates were fixed for April and May.

21. On 27th April 2020, the court was told that the subject had discussed plea bargain with his lawyer and the family.

22. The Plea Bargain Agreement was entered into on 25th May 2022 where the court was told that the subject, with the guidance of his advocates had agreed with prosecution to plead guilty to the charge of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.

23. The plea agreement was recorded in compliance with Section 137G and 137F of the Criminal Procedure Code, which provide respectively;“137G. Competence of accused to make a plea agreementThe court shall, before recording a plea agreement, satisfy itself that at the time the agreement was entered into, the accused person was competent, of sound mind and acted voluntarily.137F. Recording of plea agreement by court(1)Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands—(a)the right to—(i)plead not guilty, or having already so pleaded, to persist in that plea;(ii)be presumed innocent until proved guilty;(iii)remain silent and not to testify during the proceedings;(iv)not being compelled to give self-incriminating evidence;(v)a full trial;(vi)be represented by a legal representative of his own choice, and where necessary, have the court appoint a legal representative;(vii)examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;(b)that by accepting the plea agreement, he is waiving his right to a full trial;(c)the nature of the charge he is pleading to;(d)any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge;(e)any mandatory minimum penalty;(f)any applicable forfeiture;(g)the court’s authority to order compensation under section 175(2)(b), restitution under section 177, or both;(h)that by entering into a plea agreement, he is waiving the right to appeal except as to the extent or legality of sentence;(i)the prosecution’s right, in the case of prosecution for perjury or false statement, to use against the accused any statement that the accused gives in the agreement.(2)The prosecutor shall lay before the court the factual basis of a plea agreement and the court shall determine and be satisfied that there exists a factual basis of the plea agreement.”

24. Upon accepting the plea agreement, I made a finding of guilt on the part of the subject and proceeded to seek’ a pre-sentence ‘or pre disposal report to assist the court in the disposition of the matter. The issue for determination is whether what disposition is suitable for this case.

25. Before that there is the preliminary issue as to whether a child can enter into a plea agreement.

26. On the first issue, there is a school of thought to the effect that since a minor cannot enter into a binding contractual agreement, for lack of capacity he cannot enter a plea bargain. Is a plea agreement akin to a contract?

27. The age of criminal liability in Kenya is eight (8) years as per Section 14(1) of the Penal Code. So, a person above the age of eight (8) years can be criminally liable for an act/omission and for a person below twelve (12) years, it must be proved that at the time of the act/omission he had capacity to know that he ought not to do the act or make the omission.

28. In this case the subject was fourteen (14) years at the time of the offence and therefore the prosecution did not have to deal with this rebuttable presumption. In addition, the ODPP makes the decision to charge. The moment the ODPP preferred the charge of murder, the subject became an accused person to whom all the rights and privileges of a person in conflict with the law is entitled to.

29. The prosecution has the option of diversion. But they chose to prefer the charge and prosecute the same. The subject has legal counsel. They were faced with the option of the trial whose finalization was not within their control. They chose a plea agreement.

30. My considered view is that it cannot be said that a child can face a criminal charge of an offence a serious as murder, but cannot. due to his age, benefit from some of the available alternatives to prosecution such as a plea agreement that are available to other persons in conflict with the exact same law. If it is expected that such a child would understand the seriousness of such a charge and face the consequences of such trial, then it cannot be said that the same child would not understand what goes into a plea agreement.

31. In any event the principles guiding the children court under Section 76 are applicable to the child and would be applicable even by this court. Specifically, section 76(3) requires the court to consider the ascertainable wishes of the child vis a vis his age and understanding.“Where the court is considering whether or not to make an order with regard to a child, it shall have particular regard to the following matters—(a)The ascertainable feelings and wishes of the child concerned with reference to the child’s age and understanding;”

32. This goes hand in hand with the requirement of the Criminal Procedure Code that the court satisfies itself that the applicant for plea agreement understands what it all means.

33. Section 137A provides that an accused person/his representative may negotiate and enter into an agreement for reduction of a charge to lessen offence/withdrawal of charge/stay of charges/promise not to charge. In this case the subject through his counsel negotiated the lesser charge of Manslaughter. It is evident that the counsel for the subject initiated the plea agreement as Section 137 C (1) (b).

34. At the recording of the plea I was satisfied that the subject understood the nature of the plea agreement, and that he was competent to get into it. Hence, it is my view that a minor who is above twelve (12) years can enter into a plea agreement with the guidance of his counsel.

35. Back to the Probation and After Care Services (PACs) report dated 6th June 2022 the officer stated;RecommendationMy Lady granted by the Honorable I deem the juvenile offender suitable for institutionalization preferably be placed in Makadara Probation Hostel where he will be taught a skill after poor performance in his primary school exams, be guided on amicable dispute resolution as the family seeks ways of reconciliation among them.

36. This recommendation caused this court some anxiety. What skill does a 14-year-old learn? What will he do with it after one year when he is 15 years and back to the Community, where his age mates would be in form 2? True, he got poor marks at KCPE. Surely KCPE marks ought not be the judge of his future academic performance, as there was evidence that he was interested in school.

37. The court raised concern with the relevant office to the effect that this was inimical to the child offender’s right to education and that the same would be violated by such an action in view of the fact that there is the Government Policy on 100% transition to high school. It was expected that PACS would consider these and the circumstances under which the subject sat his exams and consider a recommendation in the best interests of the child.

38. Pursuant to that concern a fresh recommendation was made:RecommendationMy Lady granted by the Honorable court I deem the juvenile offender suitable for institutionalization preferably be placed in Kimumu Junior Probation Hostel where he will continue with his education

39. When the matter came up for final orders on the 1st July 2022 it was evident that the minor had not been consulted on the issue and he had not been made aware of the fact that of institutionalization. He had been told he was going to school. This court made it clear to the PACs officer that they have to have discussed this with the subject and his parents taking into consideration the fact that the child will still have to go back home.

40. The PACs officer was given time to deal with the issue.

41. The matter came up later and upon interviewing the subject I was satisfied that he was aware of where he was being placed and if the court gave the order sought and the consequences thereof.

42. The order recommended is in compliance with Section 5 of the Probation of Offenders Act, Cap 64 laws of Kenya. It states inter alia;(2)Where a probation order contains a provision as to residence, the place at which and the period for which the probationer is to reside shall be specified in the order, and where any such provision requires the probationer to reside in an institution the period for which the probationer is required so to reside shall not extend beyond twelve months from the date of the order, and the court shall forthwith give notice of the terms of the order to the Minister.(3)…(4)The Court may extend the period of residence specified in the probation order for a further period not exceeding twelve months in exceptional circumstances and with compelling reasons provided by a probation officer.

43. The subject is expected to attend school. Hence I did inquire from the Office what would happen in view of the provisions of Section 5(2) above. Mr. Salim told the court that the PACs office would follow up with the family and the Community and as soon as the environment was conducive and/or a fit person was identified who would take up guardianship of the subject, the subject would be released at the end of twelve (12) months and PACs would make arrangements for him to join a school there. In the alternative PACs would seek the courts extension of the committal order.

44. In the circumstances it is in the interests of the subject that I make the following orders;A.The subject will be placed on Probation Supervision for 3 years’ part of which will include residence at Kimumu Junior Probation Hostel.B.PACs Nakuru will ensure that he is enrolled in school, and undergoes the requisite guidance & Counselling.C.PACs to ensure that the subject’s parent and guardians visit him to ensure that the parental tie is not broken, and reconciliation takes place.D.A P&C file be opened continuing this order and the Probation Officers Report to be placed before the Deputy Registrar for mention on the 16th January 2023 to confirm compliance with this order and Section 5(2) and (4) of the Probation of Offenders Act.E.The P&C file be mentioned every quarter on dates to be agreed upon by the Deputy Registrar & PACs Nakuru for progress reports on the subject, and the environment at home.F.Orders Accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH JULY, 2022. Mumbua T. Matheka,Judge.In the presence of;CA EdnaFor state; Ms. MurungaFor subject: Ms. Chepng’etichSubject: PresentMr. Salim Probation OfficerMr. Gitonga Volunteer Children Officer