https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11848

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL CASE NO. E064 OF 2022** **REPUBLIC----------------------------------------------------------PROSECUTION** **VERSUS** **MARY JELAGAT------------------------------------------------------ACCUSED** **SENTENCING** 1. The accused person was charged with Murder contrary to **Sectio**n **203** as read with **Section 204** of the **Penal Code** Cap 63 Laws of Kenya. 2. The particulars of offence are that MARY JELAGAT on 29th August, 2022 at Soweto area within Kayole Sub-County in Nairobi County murdered EUVINE NAWIRE SITUMA. 3. The accused person pleaded not guilty to the murder information and the court scheduled the matter for hearing. However, in the intervening period the accused person and the prosecution entered into a plea bargain and a Plea Agreement was reached reducing the murder charge to that of Manslaughter. 4. The plea agreement dated 9th February 2026 was recorded in court on 11th February 2026 after counsel for the accused in the presence of the accused confirmed that the plea agreement had been entered into voluntarily and that the accused was ready to plead guilty to the offense of Manslaughter. 5. The Manslaughter information was read over to the accused in English the language of her choice. 6. The accused person when called upon to respond to the information she stated; “it is true’’. 7. A plea of guilty to the offense of Manslaughter Contrary to section 202 as read with 205 of the Penal Code was entered. 8. The court called upon the prosecutor to present the facts as contained in the Plea Agreement. 9. The facts were that;- **a)**. The accused Mary Jelagat is the wife to Peter Macharia whom they have been married. They were blessed with two children Jayden Macharia 5years and Vivian Wambui 13 years. They were living in Soweto. Accused was a house wife and the husband was a loader at Marikiti Market. **b).** The accused and one Martha Nyongesa who is deceased’s mother were friends. Martha Nyongesa had separated with her husband Gibson Situma Wanyonyi and she was not employed. **c).** In April 2022, Martha Nyongesa informed accused person she had rent arrears and was unable to feed her children Mercy and Euvine Nawire Situma. **d).** In May 2022, Martha Nyongesa, got a job offer in Nakuru as a house help. She thus requested accused person to take care of the young Euvine Nawire aged 5years. **e).** Martha Nyongesa entered into an agreement with the accused that she would be sending Kshs.2000 every month for food. She visited her daughter at accused house in June and July and she found the deceased in good health. **f).** On 27th August 2022 the accused left her son Jayden together with the deceased playing in the house and went to buy milk and food stuff. She locked them inside the house as Martha Nyongesa had informed her that deceased father was staying around that area and would take the child. **g).** On 29th August 2022 accused visited her neighbor's house one Esther Wanjiru. She requested Esther to accompany her to hospital to take deceased who appeared sick. Esther noticed deceased was weak and had injury on the right cheek. **h).** They took the child to Diwopa hospital where deceased was examined and they were referred to Mama Lucy hospital where deceased was pronounced dead on arrival. **i).** On 29th August, 2022 at around 7pm Martha Nyongesa called the accused but she could not reach her. On 30th August, 2022 Martha Nyongesa travelled to Nairobi and met accused at Soweto police station. **j).** She was informed her daughter had passed on. Accused explained to Martha Nyongesa that deceased fell from the bed while playing and started complaining of stomach ache. **k).** Investigating officer recorded statement of Jayden Macharia son to accused person. He revealed that the accused on diverse dates used to assault the deceased using cooking stick and knocking down the deceased on the floor. **l).** Post mortem was conducted on 7th September, 2022 and the pathologist formed opinion that cause of death was mild head injury and multiple soft tissue injuries due to blunt force trauma consistent with assault. **m).** Accused was arrested on 30th August 2022 at her aunt's house in Soweto and escorted to Soweto police station. **n).** On 31st August she was escorted to Makadara law courts vide miscellaneous application No. 787/2022. 1. The facts were put to the accused, she admitted the same to be true and correct. 2. The court convicted the accused person for the offense of Manslaughter Contrary to Section 202 as read with 205 of the Penal Code. 3. The court called for a presentence report which was filed on 4th May 2026 and served on the defense. 4. The prosecutor informed the court that they had no previous records of the accused thus she was to be treated as a first offender. 5. In mitigation the defense counsel submitted that the accused had been in custody 3 years, 7 months and 15 days since her arrest. Counsel urged the court to consider that period in sentencing in light of the provisions of Section 333(2) of the Criminal Procedure Code. 6. Counsel added that as a first offender the accused person is entitled under Article 50 (2) (p) of the Constitution to the least severe punishment. 7. The court was also told that the accused person is reformed and is now a person of good character. 8. The court was urged to consider that the accused had pleaded guilty thus saving the court its precious time and saved resources that would have gone into the prosecution of the matter. 9. The defense urged the court to consider imposing a lenient sentence should the court be inclined to give a custodial sentence. Counsel proposed a period of not more than 3 years. 10. The accused was said to be a mother of young children who require her attention and care. Further, the accused was said to be remorseful and that she regretted her actions. 11. The prosecution urged the court to consider sentencing the accused to a period of not less than 20 years imprisonment. Ms Njoroge argued that the accused as a parent should have known better how to take care of the deceased who was barely 4 ½ years old. The court was urged to consider that the deceased was vulnerable and incapable of taking care of herself. 12. The prosecution went on to state that the offence calls for a deterrent custodial sentence to send a clear message that such acts against children would not be tolerated. 13. The probation officer in her report recommended a custodial sentence reflective of the seriousness of the offense, promote accountability and provide an opportunity for rehabilitation of the accused. 14. The court appreciates that the offence of manslaughter attracts a maximum sentence of life imprisonment. However, the court retains the discretion to decide what in its opinion is a proportionate sentence taking into account the facts of a particular case. 15. The court commends the accused person for accepting responsibility for the offence by accepting to plead guilty to the offence of Manslaughter which in effect has saved this courts time. Litigation is costly, thus any move that reduces costs and saves scarce courts time should be warmly received by the court for it furthers the objective of expeditious disposal of cases. 16. The sentence imposed in a particular case must however be proportionate and geared towards attaining the objectives of sentencing which include rehabilitation, denunciation, deterrence, and retribution. 17. The victim in this case was a child of tender years. The duty upon society generally is to protect children from any form of harm and it is incumbent upon those that have the care and custody of children to ensure that the children under their care are not subjected to any form of violence or molestation. 18. The accused in this matter had received the deceased under her care as the mother went out to fend for them. She was therefore placed in a position of trust and should have endeavored to give the best care to the deceased and not to subject the innocent child to acts of brutality as indicated in facts. The use of objects to beat up a child of tender years is prima facie dangerous. The accused did not act as expected of a mother. The facts militate against a non-custodial sentence. The court will thus consider what sentence is proportionate to the circumstances. 19. The Court of Appeal in **Thomas Mwambu Wenyi v Republic (2017) eKLR** cited the decision of the **Supreme Court of India in Alistar Anthony Pereira v State of Mahareshtra at paragraphs 70-71**, where the court held as follows on sentencing: “Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is **imposition of appropriate adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done.** There is no straight jacket formula for sentencing an accused person on proof of crime. the courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the court must keep in mind the gravity of the crime, motive for the crime nature of the offence and all other attendance circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence, As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the offender. The court has to take into consideration all aspects including Social interest and consciousness of the society for award of appropriate sentence" **(emphasis added**) 1. The accused is guilty of breach of trust as a guardian or caregiver. The courts world over, treat a breach of familial or custodial trust as an extreme aggravating factor. The reason is that the child victim has his or her life literally at the mercy of the individual acting as the guardian much so because children and lack the physical or cognitive capacity to defend themselves, escape, or voice out the abuse leading to their death. 2. The deceased’s mother was away at work thus the deceased had her fate solely in the hands of the accused. 3. The facts of this case lead me to the conclusion that only a custodial sentence would be most suitable to achieve the goals of rehabilitation, deterrence and denunciation. To assault children to a point of death is something that calls for loud condemnation. 4. The innocence of a child left in the hands of an adult of sound mind should never be exploited by an adult for whatever reason. In African societies children belong to the community and are to be protected by all from any form of harm. The society must be ready and willing and ready to punish errant members of it who abandon this great societal obligation placed upon them. 5. The nucleus principles of sentencing are captured in clause 1.2 of the judiciary sentencing guidelines (2003) which provides as follows: 6. Proportionality: The sentence meted out must be proportionate to the offending behaviour meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender. 7. Equality/Uniformity/Parity/Consistency/Impartiality:The same sentences should be imposed for same offences committed by offenders in similar circumstances. 8. Accountability/Transparency: The reasons behind the determination of sentence should be clearly set out and in accordance to the law and the sentencing principles laid out in these guidelines. 9. Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process. 10. Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behaviour as a whole. 11. The need for proportionality in sentencing need not be overemphasized. However, the period of imprisonment, despite the mitigation, must reflect the gravity of the offence and communicate to society with the necessary resolve that our children require protection not harm from adults. 12. The people under whose care children are left must act with responsibility knowing that they hold a position of trust and that the children left under their care are wholly depended on them for their protection and care. 13. Although sentencing is a matter of discretion, the court would consider facts and circumstances of each case and impose appropriate sentences depended upon the aggravating circumstances of each case. In **Kamau v republic [2023] KECA 950 (KLR)** where the accused stabbed his girlfriend to death and even sent his sister to go and confirm whether she was dead, the accused was sentenced to death. On appeal the court stated that; “where circumstances justify to keep away an accused person from the society, the Court is at liberty to pass any sentence as provided in the law”. 14. The offence of Manslaughter attracts a maximum sentence of life imprisonment. The accused in this case deserves a long break from the community of civilized men long enough to allow her reflect on her actions and decide how to co-exist with the rest of society when she finally rejoins society from her stint in prison. The accused took the innocent life of a child. That calls for a deterrent sentence. 15. Accordingly, this court sentences the accused person to a period of 25 years imprisonment to be computed from the date of arrest 30th August 2022. The accused has a right of appeal against sentence within 14 days. 16. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **28th** day of **JULY, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Habiba: Court Assistant Ms Naulikha for state …….. for Accused ………… Accused