[2020] KEHC 5771 (KLR)
The court found that the accused, as a teacher and caretaker, was reckless and careless in handling a blind special needs child by failing to hand him over to his dorm mother, resulting in the child's death by drowning. The court emphasized the heightened duty of care owed by teachers to children, particularly those...
Source-derived case information.
- Citation
- [2020] KEHC 5771 (KLR)
- Parties
- Applicant: Republic of Kenya; Defendant: GAO
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Case N15 of 2018
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- Accused sentenced to four years probation with supervision and counseling; breach of probation to result in custodial sentence.
- Judges
- RE Aburili
- Legal Topics
- Manslaughter, Sentencing, Probation, Duty of Care, Teachers Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
GAO
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the accused was guilty of manslaughter under Section 202 as read with Section 205 of the Penal Code.
- 2 Whether the accused's conduct amounted to recklessness and negligence in handling a special needs child under her care.
- 3 What is the appropriate sentence considering the accused's mitigation, probation report, and circumstances.
Ratio Decidendi
The court found that the accused, as a teacher and caretaker, was reckless and careless in handling a blind special needs child by failing to hand him over to his dorm mother, resulting in the child's death by drowning. The court emphasized the heightened duty of care owed by teachers to children, particularly those with special needs, and found that the accused's conduct constituted manslaughter under Section 202 as read with Section 205 of the Penal Code. However, considering the accused's status as a first offender, her remorse, her personal circumstances, and the positive probation report, the court determined that a custodial sentence was not appropriate. Instead, the court sentenced...
Court Disposition
Accused sentenced to four years probation with supervision and counseling; breach of probation to result in custodial sentence.
Orders
- The accused GAO is sentenced to four years on probation under supervision of the Probation Officer, Siaya.
- The accused shall be guided and counselled on carefulness regarding lives in future.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL CASE NO. 15 OF 2018
(CORAM: R. E. ABURILI - J.)
BETWEEN
STATE............................................................PROSECUTION
VERSUS
GAO......................................................................ACCUSED
RULING ON SENTENCE
1. On 6/5/2020 I delivered a judgment where I found and held that the accused person GAO was guilty of the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. I convicted her accordingly.
2. The accused and her counsel Mr. Oduol mitigated after which I ordered for a probation report. I have considered the accused person’s mitigation and report filed by Mr. David Odumba, Probation Officer, and Siaya on 8/5/2020.
3. The report paints the accused person as a respectful person, God fearing and a widow who has 3 children who depend on her. One is working as a teacher.
4. The accused is a 49 year old ECD teacher. She is a widow who is also said to be HIV positive. She is a reliable and responsible member of the society save for this offence for which she has been convicted. She was the child’s caretaker at the time that he vanished and he was found drowned. She has since lost her job as a result of the said negligence.
5. She is a first offender. She regrets the incident leading to the death of the deceased victim who was a special child.
6. As stated in my judgment, teachers are in loco parentis of the children under their care. It is expected that they are careful when handling children under their custody and especially children with special needs.
7. In this case, it is clear that the accused was reckless and careless in handling the special child who was blind. She failed to exercise diligence and due care and attention by failing to hand over the child to his dorm mother. Article 26 of the Constitution is clear that every person has a right to life and no person shall be deprived of their life except in the manner prescribed by the Constitution or under written law. The special child FO did not deserve to die from carelessness of the accused.
8. The accused is remorseful and prays for leniency and accepts her mistake of being careless leading to a precious life. The Probation Officer recommends probation for the offender.
9. Having considered all the above, I hereby sentence the accused person GAO to serve Four years on probation, to be closely supervised by the Probation Officer, Siaya and to be guided and counselled on how to be careful about lives in future. She shall abide by the probationary terms, in breach of any of the terms of probation, the accused person shall be brought before this court to be sentenced to a custodial term as the court shall deem it fit and just.
10. Orders accordingly.
Dated, signed and Delivered at Siaya, this 11th Day of May, 2020. Via skype
R.E. ABURILI
JUDGE