[2022] KEHC 1924 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL CASE NUMBER E039 OF 2021

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

VERSUS

TNK............................................................................... SUBJECT

RULING ON ORDERS AFTER PLEA BARGAIN

1. TNK was charged with murder of his four (4) year old cousin. It was alleged that on 12th August 2021 at [Particulars Withheld] Village within Nakuru County he murdered NWN.

2. He was represented by Ms Njeri Githae.

3. When plea was taken on the 20th August 2021 he responded Ni ya kwelimeaning that the charge was true.

4. The court explained the seriousness of the charge and that it carried the sentence of death. The court also inquired into his age. He told the court that he was 17 years old. The prosecution confirmed the same. The charge was read afresh to him and this time he saidNakanushameaning ‘I deny’

5. On 19th October 2021 the subject told the court that he wanted to Plea Bargain for the lesser charge of Manslaughter. He had not spoken to his counsel about this and he was directed to discuss with his advocate. Counsel consulted with the subject and his father. The father did not want to hear anything about the subject being released for any reason. The court directed that counsel’s duty was to the accused.

6. In view of the age of the minor the court directed counsel to get in touch with his parents so that the matter could be discussed and the import of what the minor was saying be understood by all.

7. The mother to the minor, whose whereabouts the court had been told through the Pre Bail Report dated 2nd September 2021 were unknown. The report stated that it was ‘rumored’ that she was a resident of Mombasa. She showed up on 26th January 2022, and it turned out that she was a resident of Bamburi in Mombasa. She now wanted to stand surety for the accused. However, in the Pre Bail Report she had not been interviewed and even her name was different from the one she was giving the court. The court directed that she be interviewed and her particulars and captured in the additional Pre Bail Report. When this came back, together with a letter from the assistant chief, the court found certain inconsistencies that ought to have been obvious to the Probation officer and explained; the fact that the letter of introduction was from an assistant chief of a different sub-location and location from the one captured in the Pre Bail Report. Without the explanation, she could not stand surety for the subject as the subject was to be released to her custody to attend court as and when required.

8. At the same time the court was told that following the family discussions with counsel and the subject who has been at the Children Remand Home Nakuru, since his arrest in August 2020, the prosecution was agreeable to a Plea Agreement. The prosecution held discussions with the grandmother of the victim and the father of the accused, while counsel discussed with the subject and his parents.

9. The prosecution proceeded to substitute the charge of Murder with Manslaughter pursuant to section 137A of the Criminal Procedure Codewhich states:

(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.”

10. The father of the minor, his grandmother were engaged in the Plea Bargain. The mother to the victim and her mother were all engaged in the discussions, though the latter were completely reluctant to do so at the beginning. This was in accordance with Section 137D which states: Consultation with victim, etc.

“A prosecutor shall only enter into a plea agreement in accordance with section 137A—

(a) after consultation with the police officer investigating the case;

(b) with due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and theinterests of the community;

(c) unless the circumstances do not permit, after affording the victim or his legal representative the opportunity to make representations to the prosecutor regarding the contents of the agreement.”

11. On 8th February 2022, after the conclusion of the plea negotiations the subject pleaded guilty to Manslaughter Contrary to Section 202 as read with 205 of the Penal Code. The facts were that on the material date the minor was left with his cousin at home, in the home of his aunt, the grandmother to the deceased. When the grandmother came home, the child was nowhere, only for the grandmother to notice that the subject appeared confused. On checking under his bed, a sack was found, where the lifeless body of the child was. The subject had strangled the child with its sweater but had not intended to cause her death.

12. He pleaded guilty to the facts. I made a finding of guilt.

13. I heard the mitigation by counsel, that the subject was extremely remorseful, and that is why he had sought to plead to the lesser charge of Manslaughter. He had been in custody for seven (7) months, had promised to be of good behavior and was awaiting to sit his Kenya Certificate of Secondary Education (KCSE). He was asking for a second chance. He sought a non-custodial sentence.

14. It was further submitted that while in remand custody he had exhibited good behavior and was ready to abide by the Probation Order. That his parents residing in Mombasa were willing to take him and ensure that he complied.

15. On their part the prosecution proposed three (3) years in a Borstal Institution.

16. I requested for a Pre-Sentence Report in accordance with section 329 which provides for Evidence for arriving at a proper sentence

“The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.”

17. I also requested for a Victim Impact Statement as per Section 329C of the Criminal Procedure Code.

18. These reports were filed on 21st February 2022. The Probation Officer recommended a three (3) year Probation Supervision Order;

“The accused is a juvenile offender of 17 years, form three dropout. His nuclear family is dysfunctional, parents having separated when the accused was young. He plea bargained and his charge was reduced to Manslaughter. The office involved family members and the accused is pleading for leniency being very regretful of the offence committed. The secondary victim the mother to the deceased stated she has forgiven the offender and moved on and harbors no animosity towards him. The accused significant others who are also of the victim have met and agreed to forgive the accused who has future ahead of him. Due to animosity expressed against the accused by the community members where the offence occurred the family is in agreement that the accused given chance, can be accommodated by his mother a resident of Bamburi Location, Mbungoni Village, Mombasa County.

Our social inquiry established the accused mother is ready to take care of him and ensure he enrolls back to school. Granted the offender is suitable for Non-Custodial Sentence preferably Probation Sentence to a maximum of Three Years. He will be guided to report back to school, be law abiding and report to our officers for Guidance as scheduled.”

19. The Victim Impact Statement read;

“Though initially both secondary victims suffered psychological and emotional harm after the commission of the offence, with time they have been able to overcome the traumatizing experience and have already come to terms with the issue. They stated they have met as family and resolved to forgive the accused who is also part of the family and give him chance to rebuild his life taking into consideration his tender age and having dropped out of school.”

20. The issue for determination is what orders under s. 191 of the children Act are suitable in this case?

21. I have not taken evidence so I do not have a lot of background however I have the benefit of the Pre-Bail Report, filed on 2nd September 2021 which I analyzed and for purposes of this Ruling I quote from my Ruling;

“3. The report was filed on 2nd September 2021. It is stated by the Probation Officer that due to the prevailing circumstances in his family and community, it is in his interests that he remains in custody. According to the report, Trevor’s parents separated when he was six (6) months old, and was raised by his paternal grandmother, and was under the custody of various paternal relations in his life.

4. At the time of his alleged committing this offence he was living with the grandmother of the deceased, after being expelled from school. Trevor carries the profile of the child of a dysfunctional family as described by the Probation Officer, lived briefly with his father and step mother in Mombasa, moved to boarding school, where he was till class six (6), then to day school, earned 307 out of 500 Kenya Certificate of Primary Education (KCPE) Marks, went to Secondary School, expelled at form three (3) 2nd term, due to discipline issues, moved to another school, registered for form four (4), dropped out. He is described by the teacher as a “discipline case”, “attention seeking student”, sneaking out of school to buy drugs which he sold to other students, that at home he was involved with other boys who steal and do drugs. That he was anti-social, kept to himself, suspected drug user, disciplinary issues in the community and due to his temper, no close associates, would lock himself in the house, feared at home. His family can raise bail but is unwilling to bail him out.

5. I have carefully considered the report before me. It is not in doubt that the accused person has been a child in need of care and protection since his babyhood, rejected by his parents as an infant, and as a young boy, rejected by his own father.

6. It is noteworthy that the aspect of his life is not analysed by the Probation Officer, and neither is there an effect to demonstrate to the father that refusing to stand surety for his son does not auger well for him. Then I thought it is the duty of all of us in the child justice system to work together to rehabilitate and reintegrate children who fall off the straight and narrow before they get hardened by the system. I thought for a child as this one before me, facing a murder charge against his own niece, is a red flag for the system to not continue as usual but to propose ways and means of dealing with his welfare, even as we deal with the crime he has committed. That is what is required by Section 187 of the Children Act. Hence, as much as he may remain in custody he is still the responsibility of his parents and guardians as they cannot just drop their parental responsibilities for him.”

22. This report must be read together with the other reports filed by Probation and After Care Services (PACS) with respect to the accused.

23. The subject killed his niece albeit without intention. His background, his psychological needs were captured in the Pre-Bail Report. He has no relationship with his parents, because for most of his life, he has lived with other relatives. He has had discipline issues and psychological issues, it is a tall order to expect him to land in his mother’s home and begin to behave himself. There is no social support system, no friends, no relatives, and the rejection by his father still looms large.

24. It is my view that to simply drop him into his mother’s hands, a person with who he had not lived with for the past seventeen (17) years would be expecting too much.

25. I raised these concerns with the Probation officer. I also raised the concern that the Prosecution having made a recommendation for committal to Borstal, the probation officer had the duty to look into the possibility of both options and then place them before the court with recommendations as to why one and not the other was suitable. The Probation Officer responded that there had been a case conference where it was determined that because the subject was seventeen (17) years he could not get an admission to Borstal as only available for 15-year-old olds. This was not factually correct as the law says otherwise.

26. Nevertheless, the court did direct that the officer obtains the information from the Institution to confirm that a seventeen (17) year old was inadmissible in a Borstal institution.

27. On 24th February 2022 a Confirmation of Vacancy was received from Shikusa Borstal Institution, which is in Kakamega County. The letter was not accompanied by any explanation by the Probation officer as to whether the subject would benefit from a custodial order and whether the treatment plan he had in mind could still work while the subject was in the institution.

28. It appears to me that the Probation Officer made the assumption that the court had already made the determination to commit the subject to a Borstal, without his recommendation. This was not the position.

29. Again I expressed the concern that taking the subjectto an Institution in the complete opposite direction of where his estranged parents live would not be in his best interests taking into consideration the recommendations in the Probation Officer’s Report.

30. The Probation Officer noted that the offence occurred when the cousin, a four (4) year old tampered with accused’s radio, he placed her sweater around her neck, but used too much energy, and strangled her, only to realize she was not breathing. In the families he will go to there are young children, his own siblings, before he goes there, need to deal with his anger.

31. It is my view that a Probation Supervision Order would not be suitable.

32. It is also my view that committal to Shikutsa Borstal Institution would not be in the best interests of the subject as it would take him far from his already estranged parents.

33. I am alive to the requirements of Section 8 of the Borstal Institutions Actwhich states:

“Court to ascertain that accommodation available before directing that a youthful offender be sent to a borstal institution, the court shall ascertain whether accommodation is available in a borstal institution for the youthful offender, and shall not so direct unless it has found that accommodation is so available.”

34. I consulted with the PACs Nakuru have indicated that with a committal order to Shimo la Tewa Borstal Institution a vacancy would be obtained.

35. With that understanding, and on the basis of all the reports that have been placed before me, the nature of the offence, the needs for the subject to come to terms with what he did, and get the opportunity to reform, re connect with his parents, and guided by Section 191 of the Children Act which states:

“S. 191. Methods of dealing with offenders

(1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—

(a) By discharging the offender under section 35(1) of the Penal Code (Cap. 63);

(b) by discharging the offender on his entering into a recognisance, with or without sureties;

(c) by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap. 64);

(d) by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;

(e) if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;

(f) by ordering the offender to pay a fine, compensation or costs, or any or all of them;

(g) in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;

(h) by placing the offender under the care of a qualified counsellor;

(i) by ordering him to be placed in an educational institution or a vocational training programme;

(j) by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);

(k) by making a community service order; or

(l) in any other lawful manner.

(2) No child offender shall be subjected to corporal punishment.”

36. I make the following orders:

1. That the offender be and is hereby committed to Shimo la Tewa Borstal Institution for three years.

2. That this Committal is combined with Probation Supervision Order for purposes of smooth transition back to his family upon completion of his committal terms.

3. Taking into consideration the reports before me and the circumstances of the offence, the provisions of Section 26 of the Borstal Institution Act will not be applicable to the offender. Instead the parents of the offender are to visit him on a schedule to be worked out between the parents, the Borstal Institution and the Probation and After Care Services (PACs).

4. The Probation Supervision to continue for six (6) months upon his release from Institution.

5. This order is subject to revision by this court should the need arise.

6. Orders Accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 2ND DAY OF MARCH 2022.

MUMBUA T. MATHEKA

JUDGE

In the presence of:

C/A Lepikas

For state: Ms Murunga

For subject: Ms. Githae

Subject Present