Republic v VW (Criminal Case 24 of 2019)  KEHC 16226 (KLR) (7 December 2022) (Sentence)
Neutral citation:  KEHC 16226 (KLR)
Republic of Kenya
Criminal Case 24 of 2019
J Wakiaga, J
December 7, 2022
1.The accused was initially charged with the offence of infanticide contrary to section 210 as read with section 205 of the penal code, to which she pleaded not guilty. A plea bargain agreement entered into between the accused and the state said the charges were reduced to manslaughter which she pleaded to and was convicted on her own plea of guilt.
2.The particulars of the offence were that on the night of October 13, 2019 at around 20.00 hours at K****i village Kiharu sub county within Muranga County wilfully caused the death of JM aged five (5) weeks.
3.To enable the court, pass an appropriate sentence, I called for and received pre-sentencing report wherein the following were noted; the accused dropped out of school in class five due to poor performance and proceeded to Nairobi to live with her sister as a casual worker before meeting and marrying, which marriage produced one issue who is currently in form sitting for his exams. The said marriage ended thereafter and the accused remained un married.
4.The accused thereafter sired two other children, one now in grade three and the victim.
5.It was indicated that the accused has had a mental problem for several years attributed to genetics as both the accused mother and brother, suffers from the same illness. It was stated that the accused does not abuse any substance and had no previous convictions.
6.On the victim’s impact statement, it was stated that they were positive about the accused who has had mental illness since the birth of her first child, even though she had positively lived with the deceased and was able to engage in her daily activities including paid labour. It was contended that she did not like the person who impregnated her and that might have triggered her illness and that she was not in her right state of mind at the time of the offence.
7.It was contended that the since her son is sitting for his exams, the accused should only be released upon the same completing his exams. They further proposed that the accused be restrained from forcibly taking her other child and be subjected to the supervision of the community workers to enforce the taking of medications.
8.The community on the one hand felt that the accused may be a danger to the other children while some felt that they need her and were therefore not opposed to her being given non-custodial sentence after her child completes his exams which was the recommendation of the probation officer.
9.From the mitigation and the presentencing report, it is clear to my mind that the accused was as at the time of the commission of the offence suffering from a deceases of mind and therefore fell within the defence of insanity as provided for under section 12 of the Penal Code and can only be found not guilty for the reason of insanity as was stated by the Court of Appeal in the case of Wekesho v Republic  e KLR where the court held that a holding of not guilty for reason of insanity would be more legally sound.This is also the position adopted by the High Court in the case of R v JKN  e KLR where the accused who pleaded guilty on a plea bargain was found guilty but insane and given a non-custodial sentence.
10.In this matter am persuaded that the accused did not have the necessary mental capacity at the time of the commission of the offence and is accordingly found not guilty by reason of insanity and discharged.
11.Having noted the accused mental statutes and in the best interest of her children, I hereby order that the same shall be released to the custody of the probation officer who shall enrol her to a counselling and guidance program under which she shall continue with her medication for a period of three(3) years and to be attached to a social worker within her village who shall monitor her treatment and the children officer within the area is ordered to open a file for the two children under protection and care and that the accused shall be held in remand custody under the said file, to be released only when her son has completed his exams and not to take the child in grade 3 from the custody of her sister unless ordered by the children office assigned to her case.
12.I must state for record purposes that before entering into plea bargain herein, the court should have looked at the issue of the accused mental status as at the time of the commission of the offence.
DATED, SIGNED AND DELIVERED AT MURANGA THIS 7th DAY OF DECEMBER 2022J. WAKIAGAJUDGEIn the presence ofCourt Assistance C MutahiMs Otieno prosecutorMr. Goshe for the accused