[2023] KEHC 19173 (KLR)
The court determined that since the accused was a minor aged 17 at the time of the offence, sentencing should be governed by the Children Act and the Borstal Institutions Act. The court considered the pre-sentence report, the accused's remorse, the family's forgiveness, and the community's willingness to reintegrate...
Source-derived case information.
- Citation
- [2023] KEHC 19173 (KLR)
- Parties
- Applicant: Republic; Defendant: VKL
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E016 of 2022
- Procedural Posture
- Criminal Case / Sentence
- Outcome
- Accused sentenced to two years probation under supervision of Kericho County Probation Officer.
- Judges
- JK Sergon
- Legal Topics
- Manslaughter, Juvenile Justice, Sentencing of Minors, Plea Bargaining
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
VKL
Defendant
Procedural Posture
Criminal Case / Sentence
Legal Issues
- 1 Whether the accused, being a minor, should be sentenced under the Children Act or the Penal Code.
- 2 What is the appropriate sentence for a minor convicted of manslaughter under Kenyan law.
- 3 Whether non-custodial sentencing is suitable given the circumstances and community views.
Ratio Decidendi
The court determined that since the accused was a minor aged 17 at the time of the offence, sentencing should be governed by the Children Act and the Borstal Institutions Act. The court considered the pre-sentence report, the accused's remorse, the family's forgiveness, and the community's willingness to reintegrate him. The law requires that before committing a youthful offender to a borstal institution, the court must confirm the availability of accommodation, which was not possible in this case. Therefore, the court opted for a non-custodial sentence, ordering the accused to serve two years under probation supervision, prioritizing rehabilitation and reintegration over incarceration,...
Court Disposition
Accused sentenced to two years probation under supervision of Kericho County Probation Officer.
Orders
- The accused shall serve two years under probation supervision by the Kericho County Probation Officer.
Full Case Text
Judgment text and source record
25 paragraphs
Republic v VKL (Criminal Case E016 of 2022) [2023] KEHC 19173 (KLR) (15 June 2023) (Sentence)
Neutral citation: [2023] KEHC 19173 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Case E016 of 2022
JK Sergon, J
June 15, 2023
Between
Republic
Prosecutor
and
VKL
Accused
Sentence
1. VKL, the Accused Person herein, was initially arraigned before Court to face a charge of Murder. However, pursuant to the Plea Agreement executed between the Accused and the Director of Public Prosecutions dated March 3, 2023, the Accused pleaded guilty to the lesser charge of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.
2. The particulars of the charge are that on 28th day of August, 2022 at Kusumek Village, Kusumek Location in Bureti Sub-County within Kericho County, the Accused unlawfully killed Dennis Kipkurui Langat. The Accused was convicted.
3. This Court called for the Pre-sentence Report from the County Probation Officer, Kericho. The Accused was also given a chance to submit in mitigation.
4. Mr Musyoki, Learned Senior Assistant Director of Public Prosecutions pointed out that the Accused is a minor aged 17 years and urged this Court to pronounce a sentence pursuant to Section 239 (1) (g) of the Children Act No 29 of 2022. He stated that a child can only be committed to a borstal institution for only a year.
5. Miss Kirui, Learned Advocate for the Accused stated that the Accused is remorseful and regrets killing his brother. She also pointed out that the Accused has been forgiven by the family. She urged this Court to mete out a sentence under the Children Act.
6. I have also taken into account the Pre-sentence Probation Report. In the Report, it is indicated that the Accused is aged 17 years and he is in Form 3 at Kapsir Secondary School. It is said he is humble, hardworking and well behaved. It is also pointed out that the Accused does not take alcohol nor does abuse any narcotic drugs.
7. It is however stated that the incident has disturbed him. The Accused’s clan members who were interviewed have beseeched this Court to pronounce a non-custodial sentence to enable the community perform the traditional reconciliation and cleansing ceremonies.
8. It is also stated that the community is ready to welcome him back to society and have him integrated to create an environment to avoid stigma directed on him from the community. The community also stated that it is ready to accept back the Accused and urged this Court to be lenient and mete out a non-custodial sentence.Having considered the sentiments of the prosecution plus the submissions in mitigation by the Accused and the Pre-sentence Report by the Probation Office, I am of the view that since the Accused is a child under Section 2 of the Children ActNo 29 of 2022, the appropriate sentence to be pronounced is that prescribed under Section 239 (1) (g) of the Children Act No 29 of 2022 in which a child of the Accused’s age should be dealt with under the Borstal Institutions Act Cap 92 Laws of Kenya. Under Section 5 of the Borstal Institutions Act, it is stated as follows:-“Before sentencing a youth offender, a Court shall consider the evidence available as to his character and previous conduct and circumstances of the offence and whether it is expedient for his reformation that he should undergo a period of training in a Borstal Institution.”
9. A “Youthful Offender” is defined under the Borstal Institutions Act as a Person who has been convicted of an offence punishable with imprisonment and has been found by the Court at the time of such conviction to have attained the aged of fifteen years but to be under the age of 18 years.
10. However, under Section 8 of the aforesaid Act, before directing a youthful offender to a Borstal Institution, the Court must ascertain whether accommodation is available in a Borstal Institution for the youthful offender. The law limits the period for a youthful offender being in a Borstal Institution to a maximum of 3 years. However, no vacancy on accommodation has been secured in a Borstal Institution to enable this court commit the Accused to such an Institution. I instead hereby sentence the Accused to two (2) years under Probation under the supervision of the Kericho County Probation Officer.
DATED, SIGNED AND DELIVERED THIS 15TH DAY OF JUNE, 2023. J.K. SERGONJUDGEIn the presence of:Prosecutor – Mr. MusyokiNo Appearance for Miss Kirui for the AccusedAccused Person present in Person.