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Court of AppealPartially AllowedCriminal Appeal 156 of 2006· [2009] KECA 347 (KLR)

AWM v Republic [2009] KECA 347 (KLR)

Court of Appeal of Kenya
15 May 2009
EOE.O. O'KubasuEGE.M. GithinjiDAD.K.S. Aganyanya
1,853 words in judgment
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The bottom line

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Kenya's Court of Appeal replaced a teenage girl's murder conviction with infanticide and ordered her released after years in custody.

What this practically means

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Executive summary

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This was a first and final appeal to the Court of Appeal at Nyeri against a conviction and sentence imposed by the High Court (Khamoni, J) on 31st March 2006. The appellant, a young woman assessed by a doctor as aged about seventeen at the material time, had been convicted of the murder of her own infant daughter, aged about nine months, allegedly committed on 6th October 2002. The High Court ordered her detained at the President's pleasure. The appeal raised grounds including violation of constitutional rights on arrest and trial delay, defective committal proceedings, and errors in the trial judge's treatment of mens rea and the appellant's mental capacity. The Court, comprising O'Kubasu, Githinji and Aganyanya, JJA, in a single judgment of the court, elected to dispose of the appeal on the dispositive issue of the appellant's age and the child's age, applying the Okeno v R principles governing first appeals. Relying on Section 210 of the Penal Code and Section 181(1) of the Criminal Procedure Code, the Court held that the appellant had been wrongly convicted of murder and substituted a conviction for infanticide. It set aside the order of detention at the President's pleasure and substituted a discharge under Section 191(1)(a) of the Children Act, taking into account the long period the appellant had spent in custody, and ordered her immediate release unless otherwise lawfully held. The remaining grounds were not determined.

Key legal issues

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01

Whether the appellant should have been convicted of murder given that she was a young mother whose child was under twelve months old

Holding

The Court held that the murder conviction was wrong: the statutory scheme on infanticide applied, and the conviction was substituted with infanticide.

Reasoning

It was undisputed that the appellant was below seventeen years of age and that the deceased was her nine-month-old child. The Court examined Section 210 of the Penal Code and Section 181(1) of the Criminal Procedure Code, which permit conviction of infanticide where a woman causes the death of a child under twelve months while the balance of her mind is disturbed by childbirth or lactation, even though she was not charged with that offence. On those undisputed facts the Court was satisfied the murder conviction was wrong.

p. 4
02

What sentence should replace the order of detention at the President's pleasure

Holding

The detention order was set aside and replaced with a discharge under Section 191(1)(a) of the Children Act, given the long period already in custody.

Reasoning

The learned Judge had ordered detention at the President's pleasure, apparently under Section 25(2) of the Penal Code, while noting the appellant's assessed age of seventeen at the time of the offence. The Court of Appeal took into account the long period the appellant had been in custody since the 2002 offence and exercised its power to substitute a discharge under Section 191(1)(a) of the Children Act, directing her immediate release unless otherwise lawfully held.

p. 4
03

The constitutional and procedural grounds raised in the supplementary grounds of appeal (arrest outside constitutional period, delay of trial, defective committal proceedings)

Holding

The Court found it unnecessary to determine these grounds, disposing of the appeal on the age issue alone.

Reasoning

Although the appellant raised grounds attacking the legality of her arrest and trial, the conduct of the committal proceedings by an unqualified person, and the trial judge's treatment of mens rea and her mental capacity, the Court elected to dispose of the appeal on the dispositive question of the appellant's age and the child's age. It expressly declined to deal with all the issues raised in the submissions of both counsel.

p. 3

Legal principles established

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  • On a first appeal the Court of Appeal must reconsider the evidence and reach its own conclusions, in accordance with the principles in Okeno v R.
  • Where a woman charged with the murder of her child under twelve months was, at the time of the act, not fully recovered from the effects of giving birth or disturbed by lactation, she may be convicted of infanticide notwithstanding that she was not charged with it, under Section 181(1) of the Criminal Procedure Code read with Section 210 of the Penal Code.

Court orders

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  1. 1.Conviction for murder set aside and substituted with a finding of guilty of infanticide contrary to Section 210 of the Penal Code
  2. 2.Order of detention at the President's pleasure set aside
  3. 3.Substituted with a discharge under Section 191(1)(a) of the Children Act, taking into account the long period already spent in custody
  4. 4.Appellant to be set free forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Penal CodeSection 203
  • Penal CodeSection 204
  • Penal CodeSection 210
  • Penal CodeSection 25(2)
  • Criminal Procedure CodeSection 181(1)
  • Children ActSection 191(1)(a)
  • Constitution of KenyaSection 72(3)
  • Constitution of KenyaSection 77(1)

Cases cited (1)

  • OKENO V. R
    (1972) E.A. 32
On appeal from
High Court of Kenya at Nyeri
H.C.CR.C. No. 31 of 2003
Jurisdiction invoked
First and final appeal to the Court of Appeal against a conviction and sentence of the High Court on a charge of murder (Criminal Procedure Code appellate framework)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "AWM v Republic [2009] KECA 347 (KLR)", Case Analysis (2009). Criminal Appeal 156 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/347/eng@2009-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.