Republic v DKR [2022] KEHC 1311 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CRIMINAL CASE NO.8 OF 2020

REPUBLIC.........................................................PROSECUTOR

VERSUS

DKR.............................................................................ACCUSED

SENTENCE

1. The Accused Person in this case, a minor aged 17 years (hereafter referred to as the subject) was charged with Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

2. The subject was found guilty with the lesser charge of Manslaughter.

3.  Article 53 (1) (f) of the Constitution of Kenya, 2010 and the Children Act provide for restrictions on punishments applicable to children in conflict with the law.

4. Article 53 (1) (f) states as follows:- “Every child has the right, not to be detained, except as a measure of last resort, and when detained, to be held:-

(i) for the shortest appropriate period of time; and

(ii) Separate from adults and in conditions that take account of the child’s age and sex.

5. Section 190 of the Children Act,  states as follows:-“

(a) No child shall be ordered to imprisonment or to be placed in a detention camp;

(b) No child shall be sentenced to death; and

(c) No child under the age of ten years shell be ordered by a children’s court to be sent to a rehabilitation school.”

6. The particulars of the charge were that on 18/2/2020 at [particulars withheld] Village Ainamoi Location, the subject unlawfully killed JB.

7. The Learned Counsel for the subject in mitigation said that the subject is remorseful for the offence he committed and further that he regrets having committed the offence.

8. The Defence Counsel further submitted that the subject is aged 17 years and Section 191 of the Children Act details how he should be dealt with.

9. He also said that the subject has been in custody for one and a half years and the Court should consider giving him a non-custodial sentence.

10. The Probation Officer filed a Social Inquiry Report stating that the subject is not suitable for a non-custodial sentence since the family of the deceased is still bitter and they do not see why the subject killed the deceased.

11. I find that the subject and the deceased were friends prior to the incident and despite their age difference, they used to drink together.

12. The subject terminated the life of the deceased after the deceased reported to the Police that the subject had stolen his money.

13. Although the charge of Murder was reduced to manslaughter by the Court, the charge of Manslaughter is a serious one and it carries a sentence of life imprisonment.

14. Bearing in mind that the subject is aged 17 years old, he ought to be dealt with in accordance with the Children Act.

15. The relevant Section, Section 191 (1) (g) of the Children Act, states as follows: “in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions.”

16. I have taken into Account the Social Inquiry Report filed by the Probation Officer.

17. I find that the subject has been in custody for a period of one and a half years.

18. I commit him to Shikusa Borstal Institution for a period of 12 months on condition that there is a vacancy.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 18TH DAY OF MARCH, 2022.

A. N. ONGERI

JUDGE