[2022] KEHC 16761 (KLR)

Republic v Cherono (Criminal Case 42 of 2019) [2022] KEHC 16761 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16761 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 42 of 2019

TM Matheka, J

December 14, 2022

Between

Republic

Prosecution

and

Purity Cherono

Accused

Judgment

1. Purity Cherono was charged with the offence of Murder Contrary to Section 203 as read with 204 of the Penal Code. That on August 13, 2019 at Kapkembo Area Kuresoi South Sub County in Nakuru she murdered Ivine Chelang’at.

2. She took plea on September 3, 2019 and pleaded not guilty. On September 29, 2021, her counsel Mr Kirui told the court that they wanted to pursue a plea agreement with the prosecution.

3. On October 19, 2022 the plea agreement was recorded upon the court satisfying itself that the accused was competent to enter into a plea agreement and understood what it meant. The agreed charge was Manslaughter Contrary to Section 202 as read with s 205 of the Penal Code.

4. Upon pleading to the charge the prosecution laid out the facts:-“On the August 13, 2019 about 7. 00 p.m. the accused was with her 2 children, Brian 8 years, the other Ivyn Cherono 6 years. She told them she had no food for them that evening and they were to go to their grandmother’s for food.The accused and her children left together, they reached Simbowen. She took something that appeared like medicine, gave the two to drink and got water from the roadside and gave them to drink. They continued to the grandmother’s place. On reaching there, each child complained of stomach ache, her grandmother gave each milk, Brian vomited, Ivyn did not. Her condition worsened. The child was taken to Keringet Nursing Home. On arrival she was already dead.Post mortem was conducted at Ole Nguruone Sub County Hospital Mortuary on August 28, 2019. After post mortem parts of the organs were taken to government chemist, and upon investigations, it emerged that accused had given the children a poisonous substance. The Post mortem revealed poison in the stomach of the child.She was charged with Murder, she then entered into a plea agreement, and pleaded to Manslaughter c/s 202 as read with s. 205 of the Penal Code, the charge before court. I produce the post mortem report, the report from the government analyst; P. Exhibit 1 and P. Exhibit 2 respectively. Exhibit Memo – P. Exhibit 3. ”

5. The accused pleaded to the facts and was accordingly convicted. The prosecution submitted that she is a first offender and proposed 5 years imprisonment.

6. Mr Kirui submitted that the accused person could not have been in a normal state of mind when she committed the offence. He urged the court to give a non-custodial sentence. He asked the court to also take into consideration the other factors, that she had no food for her children and her young age he also submitted that she suffered the trauma of killing her own child and that she still the other child to take care of, and was very remorseful.

7. I directed that a Pre-Sentence Report be availed by Probation and After Care Services, Nakuru. The report was filed on November 16, 2022.

8. The only issue for determination is the sentence. A person convicted of manslaughter is liable to imprisonment for life

9. From the Social Inquiry Report the accused is the first born of the family, 32 years’ old who dropped out of school at class 6, got married at 18 years old to a much older person. The marriage is described as marred with violence from a husband who over indulged in illicit brew. She had four children with the with him and on the material date she intended to kill herself and her 4 children. However the older children are said to have vomited the poison and escaped.

10. Her marriage had just ended. Her family did not want her back. The accused is described as having turned a new leaf, has stabilized and currently has put all her children in school.

11. Counsel cited 2 cases;1. State vs Peter Okinyo Nyambok[2015] eKLR where Majanja J sentenced the father who killed his own daughter to 4 years imprisonment to be served from the date of arrest, with the balance on Probation Supervision.

2. Republic vs Josiah Keitany Chelimo [2017] eKLR where the accused was placed on Probation Supervision for 3 years for Manslaughter.

12. It is evident that the accused person committed a crime no woman would want to be accused of; killing her own child, it has been demonstrated that she was in a state of mind where she could have killed herself and all her children.

13. Many a time a married woman will be told to go back to her home (Rudi kwako) when she seeks refuge in her maiden home, because of the entrenched culture that once you get married, stay in your home (kaa kwako). So many will vumilia, it is a familiar term. To persevere for the sake of children, to stay because you have nowhere else to go and when the suffering becomes unbearable to take their lives and those of their children. The accused person’s fits this classic case.

14. Probation and After Care services has recommended 2 years on Probation Supervision, the state recommends 5 years imprisonment.

15. In my considered view a term of imprisonment would render these children of a single mother to become children in need of care and protection, and the youngest who is 3 years would most likely end up in prison with the mother. That would not serve the interest of the children, in any event the sentence sought ought not only serve to punish and correct the accused but also the public interest, which does not include creating another pool of potential delinquents.

16. In the circumstances the non-custodial sentence will serve both the purpose of rehabilitation and the public interest. The time she has stayed in custody while in remand was sufficient for her punishment.

17. I direct that she be placed on Probation Supervision for 3 years. During the period she is to receive counselling, and the children as well as they are the secondary victims who lost their sibling.

18. She is to abide by the Probation Order.

19. Orders accordingly.

DATED, SIGNED AND DELIVERED THIS 14TH DAY OF DECEMBER, 2022. MUMBUA T. MATHEKA,JUDGE.In the presence of;CA EdnaFor state: Ms MurungaFor accused: Mr. KiruiAccused: PresentMr. Ndung’u Probation Officer