[2022] KEHC 16323 (KLR)

Republic v LM (Criminal Case 27 of 2019) [2022] KEHC 16323 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16323 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Case 27 of 2019

TM Matheka, J

December 14, 2022

Between

Republic

Prosecutor

and

LM

Accused

(Ruling on Probation Officer’s Report Filed On the 8th December 2022 By Kabarnet Probation Office)

Ruling

1. I have found it necessary to write this ruling to enable the Probation Officer Kabarnet to provide the court with the requisite further report in the matter.

2. LM was charged with murder contrary to section 203 as read with 204 of the Penal Code. The victim of the offence was his 6-year-old niece. This was in 2019 when he was 16 years old. He has been in remand custody since to date.

3. He admitted to beating her with a mwiko and causing her the injuries that caused her death

4. On December 6, 2022 upon recording the plea agreement herein I directed that a pre placement (pre-sentence) report be availed by probation and after care services on or before the December 13, 2022.

5. I noted that the subject’s home was somewhere in Nyandarua, the offence was committed in Eldama Ravine, the case was filed in Kabarnet High Court the subject was held at Nakuru Children Remand Home. Due the urgency of the matter and so as to get a comprehensive report at the shortest time I called upon the probation officer Kabarnet, a Mr Too to appear on the Teams call so that we could arrange the collaboration. He attended. I made proposals which he agree to:1. That the since the subject was in Nakuru, within the jurisdiction of Probation and After Care Services Nakuru, a PACs officer could assist him to obtain the the initial information from the subject. Mr Salim was in court and he was agreeable.2. Mr Too would then use that information and any other that he may need to obtain information on the victims of the offence in Eldama Ravine.3. It was necessary that there be a home visits of the subject’s home. I directed that since the home was within the Jurisdiction of Nyandarua County Mr Too was to get the home visit report and to work by himself or through the liaison with the Nyandarua Probation Office. This is because I had in mind that fact that in the end if the subject was placed on probation supervision he would most probably be supervised by that office.

6. I have now received the Probation Officer’s Report filed on December 8, 2022, and though the counsel for the subject is agreeable to the recommendations made in the report, the totality of the report is not helpful. It is evident that it is a desk report rushed to the conclusion that the subject be placed on probation supervision. When the report is devoid of certain basics how will it be of assistance in the rehabilitation and reintegration of the subject and how can the court be persuaded that the PACs officer will carry out what he simply states in passing?

7. There is no Victim Impact Report on all the victims of this offence. It is evident that they were not just mother and father of the child, there are other children who were present when the offence was committed. The probation officer is an authorized officer under the Children Act 2022 and ought to have in mind that those children are children in need of care and protection having witnessed what happened to their sibling from their own cousin. The PACS officer fails in his duty when he does not carry out a complete report and brings to the fore the effect of the offence on these others and by inquiring into the full circumstances of the offence to bring to the attention the effect of the offence on these others. If he had done so, the information would be in the report.

8. It is evident that the order for a home visit to the offender’s home was ignored. There is no evidence in the report that Mr Too visited the home of the subject, and interviewed anyone there. Nor is there any evidence that he contacted the Probation Office within whose jurisdiction the subject’s mother lives to visit his home. This despite my clear directions to Mr Too in the presence of Mr Salim (Probation and After Care Services Nakuru) and Mr Kemboi, Court Assistant Kabarnet, Ms Edna, Court Assistant Nakuru and the subject, and the subject’s counsel.

9. The report does not have any new information other that what Mr Mwaita told the court in mitigation on behalf of the subject.

10. In the recommendation for guidance and counselling the report does not make any mention of or take into consideration the needs of the subject; for instance, he expressed the need to go back to school and pursue his education. There is no evidence in the report that this need to go back to school is part of his rehabilitation and reintegration program. I found no consideration of the prosecutions concerns for custodial placement of the subject for some time, or any explanation why that would not be suitable.

11. The Probation Officer did not also explain why he thought the subject needed guidance and counselling, what need/risk will he be addressing through that process

12. I seek for these reports because they are important for the administration of justice. They assist the court in determining a very important part of the criminal justice process: for adults whether or not they will end up in prison or whether they will serve a non-custodial sentence.

13. For child offenders they even more crucial as children rely on the child justice system to put them back to the straight and narrow before it is too late through rehabilitation and reintegration. The probation officer cannot afford to be casual about this as he must comply with section 4(8) of the Probation Offenders Act which requires that the “Pre-sentence report defined in section 2 of the Probation of Offenders Act cap 64 Laws of Kenya, as the report on an accused person for purposes of criminal justice administration” to include recommendations on period of supervision rehabilitation programmes and any measure necessary to reduce risk of reoffending.

14. This court is bound by section 225 of the Children Act 2022“225. (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 or her from undesirable surroundings and for securing that proper provision may be made for his or her maintenance, education and training. (2) …

15. In seeking for these reports the court is seeking to fulfil the requirements of the law. In addition the Probation Officer ought to take into consideration the provisions of section 239 of the (1) (c ) and (j) and explain his choice of recommendation, and whether or not there is a possibility of a combination .the sections state:“239. (1)Where a child is tried for an offence, and the court is satisfied as to their guilt, the court may deal with the case in one or more of the following ways—a)…………b)………….c)make a probation order against the offender under the provisions of the Probation of Offendersd)………..e)………..f)………..g)………..h)………..i)………… Act;(j)order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act;”

16. There is no explanation why the officer has chosen one mode of dealing with the child under the Act and not the other. Clearly the officer did not abide by the directions of the court, and in failing to do so, did not place before court a report that gives the court sufficient information to make a final determination. In the circumstances I direct that a further report be availed to address the gaps pointed above:Hence;1. A home visit report of the subject’s home and interviews with the mother and whoever else he may end up with if released on probation supervision.2. If placed on probation supervision who will supervise him (which PACs office).3. Victim Impact Report on the other victims the children who witnessed the offence being committed?4. Compliance with section 4(8) on the programmes for the offender addressing his needs and in particular those expressed in his mitigation.5. Any other necessary information that may aid the court.

17. To avoid any further delay in this matter the further report be filed on or before close of business on December 16, 2022.

DATED, SIGNED AND DELIVERED THIS 14THDAY OF DECEMBER, 2022. MUMBUA T. MATHEKA,JUDGE.In the presence of;CA KemboiProbation Officer LimoMs Ratemo for StateMwaita for subjectSubject present