REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT SIAYA CRIMINAL CASE NO. E021 OF 2021 [MURDER] CORAM: HON. R.E. ABURILI J STATE.......................................................................................................PROSECUTION VERSUS FOO.......................................................................................................................SUBJECT ORDERS UNDER SECTION 191 OF THE CHILDREN’S ACT 1. The subject in this murder case is FOO. He is aged 15 years. On 21/12/2021 this Court found him guilty of the murder of infant SA and convicted him accordingly. 2. The court then ordered for reports from the Probation Officer and the Children’s Officer, to enable the court make appropriate orders as stipulated under Section 191 of the Children’s Act on the methods of dealing with child offenders. 3. It is observed that the minor is now aged 15 years old and as at the time that he committed the heinous act of unlawfully killing the victim who was also a child – infant aged 2 months old, the subject was aged 14 years old. The subject knows that he was born in 2007. The offence was committed on 22/7/2021. The actual date of birth is not known as the birth certificate shown to the Probation Officer was disowned by the subject’s mother who said the subject’s father did not know when the subject was born and that he gave an erroneous date of birth showing that the subject is aged 12 years. 4. Section 190 of the Children’s Act restricts the punishment to be meted upon child offenders and prohibits imprisonment or detention of children. The Section also prohibits sentencing children to death. Further, no child under the age of ten years shall be ordered by a Children’s Court to be sent to a rehabilitation school. 5. Under Section 191 of the Children’s Act, the court upon finding child guilty of the offence charged may deal with the case in any one of or more of the ways set out thereunder. (a) By discharging the offender under Section 35(1)of the Penal Code; (b) By discharging the offender on his entering into a recognizance, with or without sureties; (c) By making a Probation order against the offender under the provision of the Probation of Offenders Act; (d) By committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care; (e) If the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments; (f) By ordering the offender to pay a fine, compensation or costs or any or all of theirs; (g) 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. (h) By placing the offender under the care of a qualified counsellor;
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(i) By ordering him to be placed in an educational institution or a vocational training programme; (j) By ordering him to be placed in a Probation hostel under the provisions of the Probation of Offenders Act; (k) By making a community service order; or (l) In any other lawful manner. (m) No child shall be subjected to corporal punishment. 6. The Probation Officer, Mr. John Oyare Oyiejo filed a Presentence Report on the child subject on 25/1/2022. The child subject also mitigated in person and through his advocate Mr. Okanda. The Children Officer Ms Beatrice Ouma Oguda filed her Report on 11th February 2022. 7. I have considered the circumstances under which the offence was committed, the mitigation by the subject minor who is now aged 15 years according to his mother PAO and the report by the Children’s Officer. He is a first offender. He is said to be remorseful and asks for forgiveness of the family of the infant and seeks leniency of the court. 8. Ms. Asingo the subject’s caretaker at Kisumu Children’s Remand Home reported that the minor had been of good conduct, is disciplined and remorseful. That he takes instructions and is obedient. He attends classes in life’s skills and is talented and plays football. I have also considered the Probation officer’s report and recommendation that the only permittable sentence is for the offender to be detained at the President’s pleasure. I however find no legal basis for making such an order as Section 191 of the Children’s Act does not distinguish which offenders shall be treated in a specific manner, noting that child offenders cannot be sentenced to death and neither can they be detained in prison upon a finding of guilt. 9. The Children’s Officer recommends that the Subject be committed to a rehabilitation Centre at Getathuru. However, Section 191 of the Children’s Act is clear that only children under 15 years can be committed to rehabilitation School. The Subject is now 15 years old meaning he is beyond the age for committal to the rehabilitation School. The Subject is also not yet sixteen years and therefore he cannot be committed to a borstal institution. 10. The victim of the offence was a 2-month old infant. It is regrettable that a 15 year old could defile and strangle a baby of that age. 11. From the family of the deceased victim, according to the Probation officer’s report it is quite regrettable, that the parents of the infant used to overindulge in the taking alcohol and that the offence took place when the minor was most probably looking for an opportunity to avail itself to have carnal knowledge of the victim’s mother who used to drink senselessly and be sexually abused by all and sundry including the minor herein who may have gotten an opportunity to have sex with her. 12. It is on the basis of the above revelation that I requested the Children’s Officer to investigate into the allegations and report to this court but the Children’s Officer’s report does not mention anything touching on the conduct of the victim’s mother. 13. Nonetheless, this court is properly guided by the law and the social inquiry reports filed by the Probation Officer and the Children’s Officer on what appropriate orders to make in cases of child offenders who are convicted. 14. The Probation Reports says the subject has learnt his lesson in the Kisumu Children’s Remand Home and has promised to stay away from bad company and from trouble in future. His parents have religiously attended this court and even testified on what they knew about their child. His father appeared hesitant to take custody of the subject on account that the subject learnt bad manners from his aunt’s place. The Children’s Officer’s report which is quite detailed confirms the above situation. The subject appeared brilliant and confident in his address of the Court. He was a Grade 4 pupil and since this case has been fast-tracked, he has only lost out one year of the schooling. He can still go back to school and with close monitoring of his behavior, under the care and custody of his parents who are described as hardworking, supportive and capable of providing for his needs, to the exclusion of his paternal aunt who lives in [Particulars withhheld] and whose care-giving was that of neglect and uninspiring, he can reform and achieve much in life, considering his young age and remorse. The School where the Subject was before his arrest reports that he was average in class and had no discipline case save that he could escape to his aunt’s home and miss school. 15. Although the Children’s Officer states that the home environment is hostile, the Probation officer stated that the home environment is conducive for rehabilitation and that the Subject’s home is not close to the home of the victim’s family. The Children’s officer also unearthed that the Subject partook alcohol and bhang which substances he may have been introduced to while at his paternal Aunt’s place. 16. I have spoken to the subject at length and he appears remorseful and eager to return home and follow instructions of his parents. He is also eager to return to school. 17. I must state clearly here that the Subject shall not be permitted to visit his paternal aunt at [Particulars withheld], should this court make an order for his rehabilitation under the supervision of his parents and or probation officer. 18. For the above reasons, I find that the most suitable punishment to be meted upon Subject is a Probation order. I order that the subject FOO shall serve probation under the Probation of Offenders Act for a period of three (3) years from the date of release from the Kisumu Children’s Remand Home so that he is counselled and assisted to reform. In addition, I hereby commit the subject FOO to the care of a fit person, being his biological parents COO and PAO who shall take care of him and ensure that he goes back to school and reports to the Probation officer for the period of three years that he shall be on probation without fail and as shall be directed by the probation Officer. The
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Subject is also prohibited from leaving his home to his paternal Aunt’s home at [Particulars withheld] or to any other location other than his home without the consent of the Probation Officer and his parents. Should the minor breach any of the terms of the Probation Order, he shall be returned to court for further orders as shall be deemed fit and just and as provided for in law. I so order. 19. File closed. DATED, SIGNED AND DELIVERED AT SIAYA THIS 15TH DAY OF FEBRUARY 2022 R.E. ABURILI JUDGE
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