Republic v S D [2017] KEHC 2082 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL CASE NO.21 OF 2016

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

VERSUS

S D.....................................................ACCUSED

SENTENCE

1. S D, the accused person herein, was initially charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code.

2. By a plea bargain agreement made on 20th September 2017, the said charge of Murder was reduced to a lesser charge of Manslaughter contrary to Section 202as read withSection 205 of the Penal Code.

3. The particulars of the offence were that on the night of 9th July 2016 within Kisii Township in Kisii County unlawfully caused the death of H A.

4. The accused pleaded guilty to the lesser charge of manslaughter and was consequently convicted on her own plea of guilty.  The facts of the case were that on the material date, 9th July 206 at about 8 p.m. the accused was asleep with her 3 year old daughter H A (deceased) when for an unknown reason, the accused strangled the deceased. The accused was then arrested by members of the public handed her over to the police at Kisii Police Station. The cause of death of the deceased was, through a post mortem report produced as exhibit 1, established to be asphyxia from manual strangulation.

5. Initial medical reports on the accused’s mental status established that she was unfit to stand trial but after undergoing mental treatment at Mathare Mental Hospital, she was on 31st July 2017 found fit to stand trial.

6. In mitigation, Mr. Okemwa for the accused submitted that she was very remorseful for the offence which occurred due to her mental disorder that was confirmed through the two medical reports. He pleaded for leniency for the accused whom he stated was a single mother with 5 young children. These were facts which were also confirmed by the Probation Officer’s report filed on 6th November, 2017.

7. I have considered the circumstances under which the offence of manslaughter herein was committed. It is clear to me that the accused killed her own child due to mental illness. It s also apparent that the accused’s mental state may not have been noticed by those around her and that they only became aware of it after the worst had happened.

8. The circumstances of the case makes me hold that the accused is a person who requires, social, medical and psychological assistance rather than condemnation because if she is left on her own, she may become a danger not only to herself but also to those around her.

9. It is for the above reasons that I find that a non-custodial sentence would be appropriate in this case.

10. Consequently, I sentence the accused herein to 2 years probation during which period she will be closely supervised by the Probation Officer of her area.

Dated, signed and delivered in open court this 9th day of November, 2017

HON. W. OKWANY

JUDGE

In the presence of:

- Mr. Otieno for the State

- Mr. Okemwa for Accused

- Mr. Omwoyo: court clerk