[2023] KEHC 25061 (KLR)

Republic v Wanjohi (Criminal Case E006 of 2021) [2023] KEHC 25061 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25061 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Case E006 of 2021

RM Mwongo, J

November 10, 2023

Between

Republic

Prosecution

and

Miriam Wambui Wanjohi

Accused

Judgment

1. The accused was charged with the murder, on 10th February, 2021, of her son Collins Thiaka Wanjohi. According to the post-mortem report, the deceased died as a result of asphyxiation and severe head injury following trauma in an assault.

2. On 11th March, 2021 she pleaded not guilty to the offence. On 8th February, 2022 the defence proposed a plea bargain agreement. The matter was given a date for Plea Bargain Agreement settlement on 20th June, 2022 to give the parties time to consider the proposal.

3. On 5th June, 2023, the parties availed a signed Plea Agreement dated 1st March, 2022, in court, pursuant to Section 137A (i) and 137B of the Criminal Procedure Code. The Plea Bargain Agreement was adopted by the court pursuant to Section 137G of the Criminal Procedure Code, after the court satisfied itself that the accused had understood the contents of the PBA and that the accused had executed it voluntarily without promise or benefit of any kind and without threats, force, intimidation or coercion. The court was also satisfied that the accused had understood her rights under section 137F as read to her in court.

4. The brief facts of the case are that on 20th January, 2021, at Kiai village, Kirinyaga West Sub- County, at 2 am, the accused woke her husband and told him to pray for their last born child whom she had a vision was in grave danger. After the prayer, the accused told her husband to call her mother who lived in an adjacent house. They were joined by other relatives and the accused informed them to check on the child. The child was not well and they took him to hospital where he was pronounced dead on arrival. On the way back from the hospital, the accused insisted that she wanted to commit suicide for what she had done. They reported the matter at Sagana Police Station. The post-mortem report dated 28th January, 2021 indicated that her son Colins wanjohi died due to asphyxiation and severe head injury following a blunt trauma in an assault.

5. Having adopted the PBA, the court on 5th June, 2023, convicted the accused with the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The Pre-Sentence Probation Report had been filed, the matter proceeded for mitigation.

6. In mitigation, the defence stated that the accused was a 1st offender; was remorseful and prayed for leniency. That she is a mother of two minor children who need her care and attention. Further, she urged that the probation report is favourable, and sought that the court take it into account. The accused’s counsel filed testimonials to confirm that the accused had reformed while in custody. They prayed for a non-custodial sentence.

7. The prosecution submitted that accused had been in prison since 2021, that she had not been rehabilitated, and that she may be a danger to her family if she is released from prison.

8. The Probation Report indicates that the accused is 35 years of age. The accused mother lived in a rented house at Kwa V shopping centre together with the accused and her two elder siblings surviving on casual jobs. Her mother and grandfather are now deceased. The accused dropped out of school in class 3 when her mother died. She was taken into custody by her maternal aunt who resided in King’ong’o in Nyeri doing casual jobs. She did not go back to school but instead assisted her aunt to take care of her children who were still young. She was married to Simon Kinyua and she bore 2 children with him. They separated after life became hard, and she entered into a causal relationship and bore a third child.

9. In 2016, the accused engaged in a second marriage with one Joseph Wanjohi and she joined him with her two daughters. She bore a fourth child, Collins Thiaka, in 2016. According to the Probation Officer’s report, the accused said that she was led by her mother in law in some premises to engage in some rituals that led her to kill that son.

10. The Probation Report states that the accused is not viewed as a threat to the community and is not likely to be harmed by members of the public should he be released. She has a supportive family that is willing to assist him reintegrate to the community. The victim’s father stated that he did not blame her for the death of his child as he had lost two other children from a previous marriage. There are no compelling social reasons found to disqualify her for a non-custodial sentence.

11. The Probation Report recommends the accused for a probation sentence during which she will be accorded guidance and counselling to enable her live uprightly again.

12. The applicable law on sentence for the offence of manslaughter is found under the provisions of Section 205 of the Penal Code which reads as follows;‘Any person who commits the felony of manslaughter is liable to imprisonment for life’

13. The section provides for the maximum sentence that is life imprisonment; this court has taken into consideration the aggravating circumstances in that the convict murdered the victim by asphyxiation and severe head injury following a blunt trauma in an assault.

14. The Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR set out the mitigating circumstances that ought to be considered before sentencing, as follows:“In sentencing the court will consider mitigating factors such as the following;a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the Court considers relevant.”

15. Taking into consideration the above sentencing guideline and the Probation Report that recommended for a non-custodial sentence, the accused satisfies the criteria for a reduced sentence from the maximum life imprisonment.

16. The accused has had an unstable life with several emotional/psychological upheavals. An offence whereby a mother kills her own son after asking for prayers suggests that she has, or had, a high level of psychological disturbance, and should need serious engagement with counsellors.

17. The prosecution has proposed 20 years imprisonment, and the accused proposes a 3 year non-custodial sentence on probation.

18. The Probation Report shows that the victims and the community have a positive view of the accused.

19. In my view, and given the circumstances, the accused having spent 2 years and 8 months in custody, she is entitled to some leniency.

20. Accordingly, I sentence the Accused to ten (10) years imprisonment to be reckoned as follows:a).The accused is entitled to remission under the Prison Act of 1/3 of her sentence being 3 years and 4 months which leaves a balance of 6 years and 8 months.b).The Accused having spent 2 years and 8 months in custody, a balance of 4 years remains of the sentence to be served.c).The Accused shall serve 6 months of the remaining term in a custodial sentence and 2 years thereafter in a non-custodial sentence during which she will be engaged in a community service programe facilitated by the Probation Officer and she shall also attend a counselling programe designed by the Probation Officer.d).The balance of her sentence term is hereby suspended.Orders accordingly.

DATED AND SIGNED IN KERUGOYA THIS 10TH DAY OF NOVEMBER 2023R. MWONGOJUDGE