Olivia Munyiva Nzau v Republic

below to be served as a non-custodial sentence which is in line with the Judiciary policy of Decongesting the prison. 5. The Respondent opposed the instant application and argued that the Applicant was charged for the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. She pleaded not guilty and the matter proceeded to full trial. The Applicant was convicted of the offence of murder. 6. It was established that the Applicant murdered Bruno Mwendwa aged 2 years who was her biological son. The life of a young child was cut short by the actions of the Applicant. 7. The Respondent further argued that it was established that the Applicant killed her son and decapacitated him. She mercilessly killed her own child by poisoning him and decapitating him. The boy was a child of very tender years and looked up to his mother the Applicant for care and protection. The Applicant was not remorseful and had the malicious intention to murder her son. The Respondent urged this Honourable to read the High Court Judgment and Sentence Ruling in High Court Case No. 40 of 2016 and consider the facts and sentiments in the two in arriving at its decision. The young boy suffered a gruesome and merciless death at the hands of his mother the Applicant. The Respondent submitted that the Applicant should serve the full term of her custodial sentence. 8. The Applicant makes reference to the Probation of Offenders Act, cap 64. More specifically she makes reference to Section 2 of the said act. Section 4(2) of the Probation of Offenders Act provides: a. "Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the age, character, antecedents, home surroundings health or mental condition of the offender, or to the nature of the offence or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognizance, with or without sureties, in such sum as the court may deem fit.” 9. Section 4(2) of the Probation of Offenders act refers to circumstances where the High Court is yet to make a determination on sentence but has made a conviction. In this case the conviction and sentence were made by the trial court being the High Court. This section does not therefore apply in this circumstance. 10. The Applicant further makes reference to Section 3(b) of the Community Service Act. Section 3(b) of the Community Service Act provides that: “ Where a court determines that a Community Service Order should be made, it shall. before making the order, direct a Community Service Officer to conduct an inquiry into the circumstances of the case and of the offender and report the findings to the court.” 11. However, Section 3(1) of the Community Service Act provides that: “ l) Where any person is convicted of an offence punishable with— (a) imprisonment for a term not exceeding three years with or without the option of a fine; or (b) imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14459/eng@2025-05-20 2

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court may, subject to this Act, make a community service order requiring the offender to perform community service.” 12. It is my finding that the Applicant is not eligible to a Community Service Order under this Act at this stage. The Applicant was sentenced on 2th January 2022 to 20 years imprisonment from the date of arrest on 20th September 2016. To date the Applicant has served 9 years imprisonment thus has II years remaining. The Applicant herself states she has remained with 5 years, even with consideration of remission, her sentence is yet to be 3 years and below. The Applicant's remaining sentence is not under 3 years. 13. The Applicant also makes reference to the Judiciary Policy of Decongesting the Prison. 14. The Applicant further makes reference to The United Nations Minimum Rules for Non-Custodial Measures (The Tokyo Rules) more specifically paragraph 2.1 which states that: “ .2.1 The relevant provisions of the present Rules shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice. For the purposes of the Rules, these persons are referred to as "offenders", irrespective of whether they are suspected, accused or sentenced” 15. The United Nations Minimum Rules for Non-Custodial Measures (The Tokyo Rules) are merely guidelines to guide member states in their jurisdictions. The Applicant states that according to Article 2(b) (c) of the Constitution of Kenya, the international laws form part of the law. 16. On the above, my understanding is that the jurisdiction of Kenya is a dualist State and that there needs to be a process to domesticate the International Laws to make them laws in the jurisdiction in Kenya. Further the Judiciary Sentencing Policy Guidelines in paragraph 3.6 indicates that Reference should also be made to recognised international and regional standards and principles on sentencing, which though not binding, provide important guidance during sentencing. 17. I will therefore treat these Minimum Rules as mere guidelines and not law. Paragraph 8.2 of the Judiciary Sentencing Policy further reiterates this point by stating that: “ Section 3 of the Community Service Orders Act limits the imposition of Community Service Orders to two scenarios; First, whether an offence is punishable with imprisonment that does not exceed three years. Second, where an offence is punishable with imprisonment exceeding three years but where the court determines that a sentence of three years or less would be imposed” 18. I have considered the circumstances surrounding this case as well as the Probation Officer’s Report filed in court on 27th November 2027 involving the Applicant. Although the report is positive on the suitability of having the Applicant considered for sentence review, I observe that a young life was lost in a gruesome and heinous way not forgetting the deceased was the Applicant’s biological child. 19. As aptly submitted by the State, this very high court passed Judgement against the Applicant Procedurally therefore this same high court cannot review the sentence having sentenced the Applicant to a prison term. 20. Having already found that the Applicant is not eligible to a Community Service Order under the Section 3(1) of the Community Service Act at this stagefor purposes of prison decongestion, I therefore decline to allow the application but direct that the application for sentence review may be re-considered for purposes of prison decongestion when the Applicant’s remaining sentence will be three years or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14459/eng@2025-05-20 3

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below under the Community Service Order Act and if she will be found to be suitable for such release in line with the directions of the Hon Chief Justice Martha Koome. 21. Orders accordingly. File closed. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 20TH MAY 2025. NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 20TH MAY 2025. In the presence of: In person................. for Appellant Ms Agatha.................. for State Milly....................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14459/eng@2025-05-20 4

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