[2023] KEHC 26898 (KLR)

State v Maina (Criminal Case 44 of 2020) [2023] KEHC 26898 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26898 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Case 44 of 2020

DO Chepkwony, J

November 21, 2023

Between

State

Prosecution

and

Lilian Nyambura Maina

Accused

Ruling

1. The accused Lilian Nyambura Maina was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya.The particulars of the offence are that:-“On the 18th day of October, 2020 within Thika East Sub County in Kiambu County the accused murdered GMM”.

2. Initially, the accused pleaded not guilty to the offence of Murder. Later, the accused sought for and was granted a plea bargain wherein the agreement was filed on 29th June, 2023. And on 11th July, 2023, the accused pleaded guilty to the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code.

3. The facts of the case were that on 18th October, 2023, the accused killed her son GMM, aged 2 years old by drowning him in a bucket of water and threw his body in a thicket. she then returned to the house where she was living in with D5, Mary Njeri Mwangi and D6, Daniel Maina, who she informed that she had left the deceased with his father. After few days, on 24th October, 2020, the accused noted that dogs were trying to consume the deceased’s body and she went back to D5’s house to get a yellow plastic bag so as to conceal the body but she was spotted by D1, the Landlady by the name Cecilia as she attempted to dump the body. The police were alerted and the accused arrested.

4. A post mortem examination was conducted on the body of the deceased on 5th November, 2020 and the Pathologist formed an opinion that the cause of deceased death was drowning. The accused was then charged with the offence of Murder having been found fit to plead after a mental assessment was conducted. The matter was referred to the Probation Officer for a social inquiry to be conducted on the accused and a pre-sentence report filed on 27th July, 2023.

5. The Accused person filed submissions on sentencing dated 26th July, 2023, wherein she asserted her sincere and utter remorse. She states that she was 25 years at the time of the incident and was suffering a major depressive disorder and had contemplated death on herself too. She confirms making the confession to the police vide PEXB2 which shows that she was sincerely owning up to the crime . She urges the court to be lenient to her and grant her mercy as she is now rehabilitated and ready to join the society.

6. The accused contends that since her incarceration at Langata Remand on 19th November, 2020 she has undergone rehabilitation undertaken a number of courses as shown in the Certificates of Trauma and healing, Certificate of Completion in the Prisoner’s Journey and Certificate of Completion in Discipleship (Prison Project Phillip). She also holds that she is an active member of the Catholic Church in Langata Prison which was verified by the Catcheist in a letter dated 23rd June, 2023.

7. The Accused holds that she has been a model prisoner during her stay at Langata Prison and has received a recommendation report from OIC Langata Remand dated 24th July, 2023. The accused urged the court to rely on the authorities cited and granted her a non -custodial sentence.

8. According to the Pre-Sentence Report filed in court on 27th July, 2023, the Probation Officer, after conducting an inquiry of the accused from the family, community and victims family, has recommended that since the accused is a first offender and is highly remorseful for committing the crime together with the assurance from her family that they will be supportive of her, the court should grant her request for a non-custodial sentence during which period she will be guided by the probation officer while living in the community. The report further stated that since the accused has acquired numerous courses and training, they will help her to deal with life outside prison by utilising the skills gained therefrom.

9. On their part, the prosecution informed the court that it does not intend to file any submissions and would rely on the presentence report as they did not have any past records on the accused.

Analysis and Determination 10. The court has considered the facts of the case, the records of accused as presented by the prosecutor, the recommendation in the presentence report and the pre-sentence report alongside the accused person’s submissions and notes that through the heinous actions of the accused, an innocent two year old child lost his life under the care of his own mother, a person expected to take care of him and have his best interests. It is saddening that this person haboured the evil thought which she executed and there was no one that could save the child. The court has read through the confessions of the accused and condemns highly the actions.

11. Be that as it may, the court has read through the confession by the accused and the Psychiatrist’s report and notes that, while it highly condemns the accused’s actions, notes that she is remorseful of the actions done, which can only be done by a person with psychological issues that need to be addressed and not punished. The court has also noted that the accused has undergone numerous courses which it appreciates and hopes will be beneficial to the accused person and assist her in re-integrating back to the community.

12. Having considered all the material placed before it, the court agrees with the Probation Officer that the accused may benefit from a non-custodial sentence as she is remorseful and has a supportive family to welcome her back to the society. And as stated by the court in the case of Republic –vs- Clare Moraa Obiero [2016] eKLR, by Okwany J:-9. Parents turning against their own children has been found by psychologists, to be an ultimate expression of emotional disorder. The social support systems where families were linked together and supported each other are no longer the norm, which makes this court to wonder what will happen to the child that the accused is currently carrying since she is reported to be pregnant. How safe will this child be in the hands of her own mother who has already been convicted of killing another baby?10. These are the questions that this court is grappling with especially in the face of the Probation Officer’s report that she could benefit from a non-custodial sentence.11. To my mind, the accused is a young girl and indeed a minor who still needs the care and protection of her parents, family and the society at large.12. I will take the cue from the Probation Officer’s recommendation that the accused be given a non-custodial sentence.

13. Having taken into consideration the accused person’s past history and mitigation statement alongside the Psychiatrist report and recommendations by the Probation Officer in the presentence report, this court finds that restorative measures instead of retributive more appropriate in the case of the accused person herein.

14. This court then proceeds to sentence the accused person to three (3) years probation on condition that:-

a.The accused person must obey the Supervisory Probation Officer and comply with any condition set by the Probation Department.b.She must remain of good conduct.c.She must not commit any offence during the probation period.d.The accused must attend guidance and counselling sessions to be organised by the Probation Department.e.Failure to comply with any of the above conditions, the accused will be arrested and brought back to this court for a custodial sentence to be passed against her.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 21ST DAY OF NOVEMBER, 2023. D.O CHEPKWONYJUDGEIn the presence of:Mr. Gakaria counsel for the StateM/S Ndegwa counsel for the accused personCourt Assistant - Martin