[2022] KEHC 3312 (KLR)

Republic v SWN (Criminal Case 20 of 2019) [2022] KEHC 3312 (KLR) (7 July 2022) (Sentence)

Neutral citation: [2022] KEHC 3312 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Case 20 of 2019

JM Ngugi, J

July 7, 2022

Between

Republic

Prosecution

and

SWN

Accused

Role of the court in sentencing an accused person who was mentally ill

The instant case was on the sentencing of an accused person who was mentally ill at the time she stabbed her son thereby killing him. During sentence hearing, the accused was more accepting of her conditions and regularly attended clinic. The court held that it was one more illustration that the criminal justice system could play its rightful role in the society: to facilitate a truly just society where those who needed healing of body, mind and soul were given the opportunity and facilities to pursue it; where restoration rather than retribution was privileged.

Reported by Kakai Toili

Criminal Law- sentencing - sentencing of mentally ill accused persons - what was the role of a court in sentencing an accused person who was mentally ill.

Brief facts The accused person was, according to her former boyfriend and father to the deceased, a careful though sickly mother who always took care of her deceased son, aged 4, until, in the night of March 16/17, 2019, when she fatally stabbed the deceased two times on the chest with a kitchen knife killing him immediately. The accused then turned the knife on herself three times in an attempt to kill herself.The accused was charged with one count of murder and one count of attempted suicide. For some time, a psychiatrist adjudged her unfit to take plea. The court ordered that the accused be confined for treatment where she remained for at least two months before a psychiatrist confirmed that she was fit to take plea and she pleaded not guilty to both charges. On November 22, 2021, the accused signed a plea agreement in which she pleaded guilty to the lesser charge of manslaughter.

Issues What was the role of a court in sentencing an accused person who was mentally ill?

Held

The accused was a young woman in need of treatment, care and protection. She was certainly not a deranged criminal in need of retribution and confinement. During sentence hearing, the accused was upbeat about her situation. She was more accepting of her conditions. She regularly attended clinic; and more readily accepted help from her mother. She looked forward to bringing up her remaining son in a healthy environment.

The probation report’s recommendation was that the best role that the criminal justice system could play in the instant case was not to punish but facilitate healing and wellness; not to extract retribution but to sustain restoration. It was a happy day when the criminal justice system played that positive role.

It was not a happy ending; but it was a hopeful one for the accused and her remaining son. It was one more illustration that the criminal justice system could play its rightful role in the society: to facilitate a truly just society where those who needed healing – of body, mind and soul - were given the opportunity and facilities to pursue it; where restoration rather than retribution was privileged. That was therapeutic jurisprudence in action.

One-year probationary period prescribed to the accused.

Citations StatutesNone referred toAdvocatesNone mentioned

Sentence

1. This ruling reflects a heart-wrenching but an all-too-common tale of the melancholic wretchedness that engulfs that space at the intersection of mental illness; poverty and negative social norms created by our societal narratives of illness and wellness. It is a compounding melange of multiple disadvantages that, in this sordid tale, have unleashed one death – of a young boy; only four years old; and the near-death of the boy’s mother, the accused person; a 31 year old woman.

2. The accused person herein is SWN She was, according to her former boyfriend and father to the Deceased, a careful though sickly mother who always took care of her son, MKN (Deceased), aged 4, until, in the night of 16th/17th March, 2019, she fatally stabbed the deceased two times on the chest with a kitchen knife killing him immediately. The accused person, then, turned the knife on herself three times in an attempt to kill herself.

3. Following these events, after the accused person was rescued and treated, she was arraigned in court and charged with one count of murder of MKN and, incredibly, one count of attempted suicide! For some time, a psychiatrist adjudged her unfit to take plea. In his first assessment, Dr Njau concluded thus:“SWN is an adult female who suffers from a poorly controlled epilepsy (convulsive disorder) which is a chronic neurological disorder which requires treatment throughout one’s life. She has been on and off medication especially when she committed the offence she was out of drugs (sic). I would highly recommend for her treatment and follow-up in a Psychiatric Unit and in my opinion she is currently unfit to stand trial."

4. Given this conclusion, the court ordered that SWN be confined for treatment where she remained for at least two months before a Psychiatrist confirmed that she was fit to take plea. She pleaded not guilty to both charges.

5. To the credit of the DPP, the Prosecutor began negotiations on a plea agreement immediately. Meanwhile, through carefully crafted bond conditions, SWN agreed to continue with out-patient treatment under the care of Dr Njau and with the supervision of her mother. She also proved a caring mother to her other son during this period.

6. Eventually, on 22/11/2021, SWN signed a Plea Agreement by the same date in which she pleaded guilty to the lesser charge of manslaughter.

7. The agreed facts deserve a verbatim reproduction:The brief facts are that on the March 16, 2019 at about 0730 hours, SWN (Deceased) called JNG (D1) who was her boyfriend informing him to bring her battery which he was using. On arrival the Accused asked JNG (D1) to take back the clothes that he had bought for her which he did not.During the night at about 0918 hours, JNG (D1) received a text from the accused stating that ‘Jaribu kukuja kwetu ama mazishi yetu utajua maiti yenye iko na mashetani ndio mimi’.On March 17, 2019, JNG (D1) received a call from the accused who told him to go and collect dead bodies. JNG (D1) rushed to the accused person’s house and found her lying in a pool of blood on the floor with a kitchen knife. JNG (D1) called for help from the neigbours who assisted him to take the accused person to Bahati sub-county hospital where she was later referred to Nakuru Level 5 hospital while in a serious condition.The matter was reported at Bahati Police Station where the OCS and DCI officers visited the scene of the murder and found the dead body of MKN, son to the accused lying on a mattress on the floor. The deceased was escorted to the Nakuru County Mortuary for preservation awaiting post-mortem. On March 18, 2019 the accused was arrested and taken to Bahati police station. On March 19, 2019, the post mortem was done and the cause of death was recorded as ‘Chest cardiac muscle injury with hemochorax, 2 stab wound trauma to the chest with a sharp blade homicide’.Since the accused attempted to take her own life with a knife, a P3 form was filled by the Doctor and the degree of injury was classified as ‘Harm’. The accused person was then charged with the offence of murder.

8. As the facts patently announce, here is a young woman in need of treatment, care and protection. She is certainly not a deranged criminal in need of retribution and confinement. The Probation Report is clinical in its description:“The accused suffers from epilepsy, a convulsive disorder. It is reported that she developed the illness at the age of 3 years. Her doctor has recently [diagnosed] bipolar as another mental condition the accused is facing. She is therefore on permanent medication…..The effects of this condition have been low self-esteem and mental instability. She also suffers occasional mood swings. She has tried to commit suicide on several occasions. The accused also carries the burden of her parents’ separation. She thinks her illness could have contributed to this situation…..when on medication, she can function normally."

9. During sentence hearing, the court was anxious to know how SWN is doing mentally; and how she hopes to sustain her wellness. She was upbeat about her situation. She is more accepting of her conditions. She regularly attends clinic; and more readily accepts help from her mother. She looks forward to bringing up her remaining son in a healthy environment. Listen to her:“I beg for forgiveness. I was sick at the time. I am now okay. I have been seeing a doctor regularly. I am now on prescription medication and I am doing well. I ask for leniency. I beg for non-custodial sentence so that I can take care of my child. He is now 2. 5 years old."

10. Ms Mumbe, a refreshingly ethical prosecutor, agreed with the Probation Report’s recommendation: the best role that the Criminal Justice System can play in the present case is not to punish; it is facilitate healing and wellness; not to extract retribution but to sustain restoration.

11. It is a happy day when the Criminal Justice System plays that positive role. In this case, the Probation Report, in its recommendation for a one year probationary sentence, prescriptively yet hopefully notes:“During our inquiry, we noted that she may need some form of supervision and constant supply of medicine. Both parents have been brought on board. Her father has agreed to take care of her medication while the mother has agreed to provide shelter and close supervision of the medicines."

12. It is not a happy ending; but it is a hopeful one for SWN and her remaining son. It is one more illustration that the Criminal Justice System can play its rightful role in the society: to facilitate a truly just society where those who need healing – of body, mind and soul -- are given the opportunity and facilities to pursue it; where restoration rather than retribution is privileged. This is therapeutic jurisprudence in action.

13. It is a privilege to prescribe one year probationary period to you, SWN. And to congratulate you for the strides towards wellness that you have made. And, finally, to wish you and your son well in life’s journey.

14. Those will be the orders of the court.

DATED AND DELIVERED AT NAKURU THIS 7TH DAY OF JULY, 2022. ...................................JOEL NGUGIJUDGE