[2022] KEHC 1378 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NUMBER 21 OF 2019

REPUBLIC...............................................................................ODPP

VERSUS

NAOMI CHEPNG’ENO KIMETO...............................ACCUSED

R U L I N G - S E N T E N C E

1. The accused was charged with Murder Contrary to Section 203 as read with 204 of the Penal Code. It was alleged that on 21st March 2019 at Kapkwen Village within Rongai Sub County within Nakuru County murdered Shan Chepkurui.

2. Plea was taken on 8th April 2019 and she pleaded not guilty.

3. Plea negotiations began in February 2020.

4. The same was finalized on 14th December 2021 when the accused negotiated a charge of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. She pleaded guilty to the charge.

5. The facts were that she intended to commit suicide and die together with her last born child, who is the deceased herein. So, on 21st March 2019 she bought a drug by the name triatix which is poisonous to human beings but used for cattle. She mixed it up and drunk some. She gave some to the child. When she developed severe stomach pains and head ache she left the child with her mother, and went to the roadside where she expected to die. By 3. 00 p.m. she had not died. She returned back home drunk more of the poison, and gave the child more of it. After some time, she noticed that the child was very weak and she tried to breast feed her. By 7. 00 p.m. the child had died but she herself had not died. It is then that she went to Rongai Police Station and reported that she had killed her child.

6. The police accompanied her to her home and found the child already dead. She confessed to the death and explained the facts to Chief Inspector Roba.

7. The Post Mortem report confirmed that the child died of poisoning.

8. She pleaded guilty to the facts.

9. She was convicted on her own plea of guilt.

10. The prosecution proposed five (5) years custodial sentence.

11. In mitigation, Ms. Chemng’etich for the accused person submitted that the accused was twenty seven (27) years old, she was mother to two (2) other children, and she regretted that her last born child had died because of her own deed.

12. That the accused’s own mother was having difficulties parenting her two (2) children who are of tender age. That the Rongai Health Centre did provide a medical report to the effect that the accused person was at that time suffering from post- delivery depression. Her baby was about nine (9) months old then.

13. Ms. Chemng’etich urged the court to consider a non-custodial Sentence to enable her take care of her children.

14. The Pre-Sentence Report I requested for from Probation and After Care Services was filed on 1st March 2022. It indicates that she was born in 1995. She dropped out of school before completing primary school and engaged in casual labour/house help jobs till 2011 when she moved to Olenguruone. Later the family moved to Salgaa where she engaged in sex work. She had three (3) children, the third being born out of the sex work she was engaged in to earn a living. She did not know who the father was, and could not make ends meet. She became stressed, sunk into depression. The depression issue is supported by the medical report from Rongai Health Centre that she suffered post-delivery depression.

15. Her intention was to kill herself and her baby so as to lessen the burden on her mother, who by 2015 had bought a parcel of land in Rongai, where the whole family was residing.

16. The accused was released on bond on 3rd June 2020. The Pre-Sentence Report indicates that since her release she had exhibited maturity, was hardworking and had a good relationship with the family and members of the community. The family is aware that at the time of the offence the accused had mental problems and are willing to support her. In prison she underwent counselling, and dealt with issues of self-concept and self-esteem.

17. The issue then is what sentence is suitable in the circumstances of this case. The Probation Officer proposes two (2) years Probation Supervision.

18. I have carefully considered the circumstances of the case and the recommendations by both the prosecution and the accused, and the Probation and After Care Services (PACS) with respect to sentence.

19. This is a plea negotiation as envisaged by Section 137 A of the Criminal Procedure Code which provides;

“S.137A. Plea agreement negotiation

(1) Subject to section 137B, a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of—

(a) reduction of a charge to a lesser included offence;

(b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges.

(2) A plea agreement entered into under subsection (1)(a) or (b) may provide for the payment by an accused person of any restitution or compensation.”

Section 137I provides a window for parties to address the court on sentencing as per Section 216 of the Criminal Procedure Code.

“Section 137I of the Criminal Procedure Code provides;

Address by parties

(1) Upon conviction, the court may invite the parties to address it on the issue of sentencing in accordance with section 216.

(2) In passing a sentence, the court shall take into account—

(a) the period during which the accused person has been in custody;

(b) a victim impact statement, if any, made in accordance with section 329C;

(c) the stage in the proceedings at which the accused person indicated his intention to enter into a plea agreement and the circumstances in which this indication was given;

(d) the nature and amount of any restitution or compensation agreed to be made by the accused person.

(3) Where necessary and desirable, the court may in passing a sentence, take into account a probation officer’s report.”

Section 216 states:

“Evidence relative to proper sentence or order

The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.”

20. The prosecution simply stated that they recommend five (5) years custodial sentence without any justification. I think, when it comes to Plea Bargain, and in sentencing it is necessary that each party at least puts out a justification for the sentence they are suggesting. Simply stating a number of years or term of imprisonment is not sufficient justification for the sentence.

21. The accused was in custody from 1st April 2019 to 30th June 2020. The matter had never taken off to hearing. The accused person had intended to kill herself and her last born baby yet she had other children. If we are to strictly follow the law, two offences took place here: attempted suicide and murder. If the police had investigated both offences then they would have got to the root of the accused person’s conduct and charged her appropriately while dealing with the issues that she had. The fact that this did not form part of investigations is an indication of the linear nature of the investigations, that a child died, the only thing the prosecution was did was to have the accused charged and so as to be convicted with murder, yet the facts are clear, the accused had not set out to kill her child per se, she had set out to kill herself and the child. She was suffering from mental illness which was not even captured by the psychiatric examination.

22. It is noted in the report that her sister in law told the psychiatrist that the accused “easily loses her temper.” The family when interviewed noted that that was an issue, and the report from Rongai Health Centre indicates the mood swings. From this, it is noteworthy that she was not ok, and did not get the help she needed before she committed the offence, otherwise it is possible that her child would still be alive. This is not the kind of person that is sent to serve a prison term, she is currently not a danger to herself or her children, as she has been home since 30th June 2020.

23. I find therefore that the period she spent in custody to be sufficient custodial sentence. Her children, whose father is not in the picture and who are children of tender years need her, and she needs to take care of them, her mother cannot continue with the parental responsibility.

24. In the circumstances, I order that she be placed on Probation Supervision for three (3) years.

25. During this period she is to continue with counselling and to abide by the probation order.

26. The order be served on Probation and After Care Services Nakuru for Compliance.

27. The Surety is discharged.

Dated, Delivered and Signed virtually this 16th day of March, 2022.

Mumbua T. Matheka

Judge

In the presence of:-

Court Assistant Edna

For accused: Ms. Chepngetich

For state: Ms Murunga

Accused present in open court