[2017] KEHC 7396 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 12 OF 2016

REPUBLIC……………...…………………………....…...……PROSECUTOR

Versus

F L……………….….…...…….…....................................................ACCUSED

SENTENCING REMARKS AND VERDICT

The accused – F L was initially charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code for causing the death of her son one P O on 25/11/2014 at their home. On 27/7/2016 the defence counsel indicated to the prosecution a need to plea bargain the charge under section 137 (a – o) of the Criminal Procedure Code. The plea bargaining request and terms was served upon the senior prosecution counsel Mr. Alex Akula for perusal and input. The plea bargaining agreement was discussed and presented to the accused person. F L who accepted to change plea from murder to a lesser charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code.

The accused having understood the terms of the plea-bargaining agreement took the stand pleaded guilty to the charge of manslaughter. Pursuant to her own plea of guilty the accused F L was convicted accordingly of the offence of manslaughter. The matter was set down for sentencing hearing where besides adducing mitigation by Mr. Kimeu the defence counsel a pre-sentence report by the probation officer was called for by this court.

In the pre-sentence report the accused F L is a mother married to J L O. The couple have been blessed during the subsistence of their marriage with six (6) children including the deceased in this subject matter namely;

S K, R T, P L, F N and A L. The surviving children are aged between 5 and 13 years respectively. The accused F L according to the report is aged 30 years and has in the past enjoyed cordial relationship with her family prior to this unfortunate incident.

One of the key negative factor which emerged during the inquiry was that the accused on or about ten years suffered some mental illness which she was diagnosed and placed on medication. She was later diagnosed of hypertension and diabetes. This health conditions combined together can overwhelm the well being of a human being. It is clear also that during the period of plea-bargaining agreement the family had a meeting under Article 159 of the Constitution to try and work jointly with the accused with a view to reconcile and come to terms with the death of their son. The family was therefore faced with their mother as an offender and on the other hand her health was a matter of concern at the same time. The head of the family J L had to deal with these fundamental issues hence the need for an application under Article 159 of the Constitution as read together with section 137 (a) of Criminal Procedure Code. Under the Maasai customary law the offender of a crime is personally held accountable and is able to take responsibility for repairing the damage caused by his/her criminal behaviour. The purpose and emphasis is to heal and re-establish relationships through reparation rather than rehabilitation. This was necessary because of the consequences of this crime involving the death of one of their own biological child. The family frustrations, angers and hostilities caused by the offence committed by the accused F L and also a mother to the deceased so as to address any simmering emotions and trauma. That according to probation officer has already taken place. The probation officer in her report thinks that there is a chance for the accused – F L to reform and be a loving mother again who cares for her children and the family.

On the part of the prosecution the accused F L has no previous antecedents related to this offence. In advancement of the rule of law and exercise of judicial direction on sentencing, learned prosecution counsel submitted to the court that the exercise be left for the court to do all within the realms of the law. Mr. Kimeu the defence counsel mitigated on behalf of the accused F L remorse and regrets to the unfortunate incident. Learned counsel further urged this court to consider that as a family they have had mediation meetings to try and resolve the issues and the possibility of accepting her back to the family fold and enable the children and the husband J L not only accept the accused back but to commit in helping her deal with the psycho traumatic experience. Learned counsel further mitigated that the accused F L is still a mother to the surviving five children who will continue to look up to her for support and guidance.

I have carefully and anxiously taken into account the mitigation, the pre-sentence report, the prosecution counsel remarks and circumstances of the offence as set out in the plea-bargaining agreement. This unfortunate incident was grave where the accused F L a mother to the deceased unknown to the victim suffered a painful death and his life prematurely terminated by his confidant and parent; the love of a mother/child is one of the most powerful elements of creation due to the bond created during conception and upbringing. The infancy stages of a child are substantially spent with the mother under a close knit relationship. However as fate will have it the accused F L on 25/11/2014 in the night called all the children and took them out where she murdered the deceased as the other five managed to safely escape from being attacked by the accused and that own biological mother.

For this offence the drafters of the penal code considered its seriousness and gravity prompting them to provide for a maximum sentence of life imprisonment for any offender found guilty of the offence of manslaughter. I take judicial notice that in Kenya life imprisonment has not been sufficiently and adequately defined like in other jurisdictions where courts take into account the ordinary span of life of a human being. That is it may our courts soon or later will have to put this to rest.

I am of the conceded view that courts or parliament should now lead the way in defining the principle of life imprisonment as sentencing order in our statutes. I have with a heavy heart pondered on what sentence to pass in this case given the manner and circumstances outlined herein. Secondly the general circumstances surrounding the commission of the offence involving the accused and the deceased which occurred under serious aggravating factors. This is a case where the siblings to the deceased have been deprived of a lifelong companion and the husband has lost one of their very own.

However weighing one factor after another I find some mitigating features to persuade me tamper with the maximum life imprisonment sentence or custodial sentence for that matter in the following manner:

The five surviving children aged between 5 – 13 years are at a tender age and in need of care and protection. The accused F L is the only mother they have and known. Since the occurrence of this incident the family has undergone a series of healing and reconciliation to come to terms with the death. This death within the family will remain tragic and occasion a psycho-traumatic impact on their lives forever. The accused F L has had her health condition diagnosed and placed on medication. The victim offender mediation is an ongoing process within this family as captured in the pre-sentence report.

As I have explained the accused and her family have started the journey of a reform agenda to put what happened behind them. The young children still look up to their mother for love, care and support. There is light at the end of the tunnel that they will embrace mutual tolerance to accommodate the accused back to the family. The mitigating features therefore outweigh the aggravating factors in this unique homicide which occurred within a family set up. There is also a medical factor involving the accused who suffers from hypertension, diabetes and mental illness. All these conditions are being attended to through prescription medicine. The accused history reveals that she has been of good temperament and behaviour save for this incident.

I am satisfied therefore that there are exceptional circumstances to sentence the accused F L to a non custodial sentence of three years probation with a condition that the family together with the probation officer identifies a professional counselor to walk them through the journey of healing and restoration. This court orders that a mention within 90 days (3 months from today’s date) be undertaken to monitor progress and compliance.

Further mention 29/5/2017. 14 days right of appeal explained.

Dated, delivered, signed in open court at Kajiado on 27th day of February, 2017.

…………………………………..

R. NYAKUNDI

JUDGE

Representation:

The accused present

Mr. Kimeu advocate for the accused – present

Mr. Akula for Director of Public Prosecutions – present

Mr. Mateli Court Assistant