[2023] KEHC 26474 (KLR)

Republic v MC alias C (Criminal Case E011 of 2022) [2023] KEHC 26474 (KLR) (15 December 2023) (Sentence)

Neutral citation: [2023] KEHC 26474 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Case E011 of 2022

RL Korir, J

December 15, 2023

Between

Republic

Prosecution

and

MC alias C

Accused

Sentence

1. The minor offender MC alias C was charged with the offence of murder Contrary to Section 203 as read with Section 205 of the Penal Code. The particulars of the offence were that she murdered VC also a minor on 11th May, 2022 at around 10. 30 hours in Kiplabotwa Location, Bomet East Sub-County within Bomet County.

2. She took plea on 30th June, 2022 and denied the charge and when the case came up for pre-trial, the Prosecutor informed the court that the State wished to make a plea offer to the offender.

3. The court directed the children officer to file a report. The court also directed the defence and prosecution Counsel to involve the parents or guardians of the offender in the plea negotiations.

4. A Plea Agreement was filed on 25th October, 2023. When the matter came up on 21st November, 2023 the court took time to interview the minor offender with a view to confirming that she understood the charges she was facing and the process of plea bargaining and the attendant proceedings. The court accepted the Plea Agreement upon being satisfied that the minor offender possessed sufficient knowledge to answer to the charge and had clearly participated voluntarily in the plea negotiations.

5. The minor offender took plea on the substituted charge of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and pleaded guilty. The facts of the case were read by the Prosecution Counsel as follows: -“On 11th May, 2022 at 1030hrs, the subject aged 17 years met the deceased (16 years) outside a wines and spirits shop at Mulot area. The deceased demanded from the subject that she return her memory card which she had borrowed. After a brief argument, the subject, who was armed with a knife, stabbed the deceased with a knife on the chest area. The subject herein then hid the knife and attempted to flee the scene. An alarm was raised, and members of the public pursued the subject and arrested her and was escorted to Mulot police station. The deceased was rushed to hospital but unfortunately succumbed to her injuries.The post mortem report confirms that the deceased died as a result of excessive bleeding. We contend that the subject was provoked into an argument with the deceased and acted out of irrational anger.”

6. The minor offender accepted the facts as true and a finding of guilty was entered. The court directed the Probation Officer to file a comprehensive pre-sentence report and Victim Impact Statement.

7. At the sentencing hearing on 29th November, 2023, two reports were placed before the court. One by the Children’s officer dated 18th July, 2023 and the other by the Probation officer dated 28th November, 2023.

8. The Children officer’s report stated that the offender had been taken through counselling and guidance and had shown remorse and an improved bahaviour. It recommended her release back home to the community.

9. The Probation Officer’s Report provided a detailed insight into the offender’s background and character prior to the offence. That she had dropped out of school, and though a minor, was working in a wines and spirits shop. Her family was dysfunctional and she had no proper guidance growing up. According to the Probation Officer, the offender was a troubled young person who appeared to be dealing with unresolved developmental issues through rebellion and violence. That the family and community support system was too weak for her social reintegration.

10. It was the recommendation of the Probation Officer that the offender was in need of rehabilitative interventions at a correctional institution.

11. Mitigation on behalf of the offender was made by learned defence counsel Mr. Mugumya. He submitted that she was in need of care and protection. That she was a young girl with a bright future if well guided. He prayed that she be placed in an institution where she can acquire skills.

12. MC addressed the court directly and stated that she was attending [Particulars withheld] Primary School class 7 and was to join class 8 before arrest. She asked for forgiveness and indicated that she wished to go back to school.

13. Mr. Waweru learned Prosecution counsel submitted that the principle of the best interest of the child applies and that incarceration should be the last option. He submitted that he agreed with the findings in the probation report that the offender was working in a wines and spirits shop while under age and was not in school. He submitted that it was in the best interest of the minor to be placed in a Borstal institution where she can complete her studies and acquire skills to improve her life.

14. The Probation officer who was present in court confirmed that Kamae Borstal Institution was appropriate.

15. Section 239 of the Children Act, 2022 provides: -Methods of dealing with children in conflict with the law.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.Discharge the child under Section 35(1) of the Penal Code;b.Discharge the child on his or her entering into a recognizance, with or without sureties;c.Make a probation order against the offender under the provisions of the Probation of Offenders Act;d.Commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;e.If the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;f.In the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institution Act;

16. In the case of JKK V. Republic(2013 eKLR), the Court held that: -“The purposes of the sentences provided for under the Children Act are meant to correct and rehabilitate a young offender, i.e. any person below the age of eighteen years while taking into account the overarching objective is the preservation of the life of the child, and his best interest. A death sentence or a life imprisonment are not provided for but when dealing with an offender who has attained the age of sixteen years the court can sentence him in any other lawful manner. The offence committed by the appellant is very serious, an innocent life was lost, the appellant, though probably a minor when he committed the offence must serve a custodial sentence so that he can be brought to bear the weight and responsibility of his emission or lack of judgement by serving a custodial sentence. We are of the view that the appellant who is now of the age of majority cannot be released to the society before he is helped to understand the consequences of his mistakes which can only happen after serving a custodial sentence.”

17. I have considered the circumstances of the case. It was clear that the offender grabbed a knife from the deceased who was a fruit seller and turned it on her stabbing her severally because of a quarrel over a memory card. This extreme violence was not a justifiable at all.

18. I have also paid due regard to the background of the offender which was not conducive to her rehabilitation and re integration. I have considered that the offender regretted her action and wished to go back to school and her home. The Social inquiry report however was categorical that the environment at home was not supportive of her rehabilitation and reintegration.

19. I have paid due regard to the submission of both the prosecution counsel and the defence counsel. There was consensus that it was in the best interest of the offender for her to be placed in a correctional institution where she can be fully rehabilitated and acquire valuable skills. I agree with this submission and consider the same to be in accordance with the best interest of the child principle.

20. The probation officer recommended a specific institution after having made the necessary inquiries. The institution would offer the necessary rehabilitation, education and skills training which to the mind of the court was necessary for the future development of the offender. In short it is the finding of this court that the offender shall benefit from institutional rehabilitation.

21. In the final analysis I commit MC aged 15 years to Kamae Borstal institution for a period of 3 years.

22. All necessary documentation including her medical report, age assessment and social inquiry reports be attached to the committal order.Orders accordingly.

SENTENCE DELIVERED, DATED AND SIGNED AT BOMET THIS 15TH DAY OF DECEMBER, 2023. .........................R. LAGAT-KORIRJUDGESentence delivered in the presence of Mr. Njeru holding brief for Mr. Waweru for the State, Mr. Merebu holding brief for Mr. Mugumya for the Minor Offender and Siele (Court Assistant)