The High Court has handed a 21-year-old woman accused of killing her four-month-old baby a two-year non-custodial sentence.
The woman identified as HNM was sentenced by Justice Richard Mwongo after being convicted of manslaughter following a plea-bargain agreement between her and the State Prosecutor.
The court noted that the toddler died after being choked by milk and not murder.
The judge declined the prosecutor’s plea to sentence the woman to 20 years in jail. He said according to the pathologist’s report, the woman had no intention to kill the baby.
“The court has carefully considered the facts set forth in the plea-bargaining agreement. In particular, the court notes that no witnesses other than the pathologist are indicated. It is also clear that the baby died from asphyxiation due to choking on his own food and no ulterior intention is attributed to the accused,” said Justice Mwongo.
The woman had been charged that on the night of December 6 and 7, 2021 at around midnight, at Kiandai village, in Kirinyaga County, she murdered the toddler.
Murder charges
When arraigned, she pleaded not guilty to the murder charges. The defence sought to engage with the state on a plea-bargaining agreement, leading to a lesser charge of manslaughter.
The agreement indicates that the baby neither had birth nor health complications from the time of his birth.
The court heard that on December 6, 2021 at about midnight, the baby started crying relentlessly, and the accused started inflicting injuries on the child’s cheeks as she sought to make the baby sleep.
She made the baby sleep on her stomach, and having been under stress of financial difficulties, she also fell asleep thinking the baby was well.
The following day she woke up at around 7am and went to prepare porridge for her son. On trying to wake him up, she realised that he had died.
A post mortem report dated December 15, 2021 by a Dr Karomo indicates that the external appearance of the child was that he had “central and peripheral cyanosis, no signs of strangulation were seen, and there were excoriation (pinch) marks on both cheeks”.
Internally, he found milk particles within the trachea, and the digestive system disclosed a full stomach with partially digested milk.
Dr Karomo formed the opinion that the cause of death was “Asphyxia following choking on stomach contents”.
20 years imprisonment
The prosecution stated that the accused should be sentenced to 20 years imprisonment as “she should be made to understand that a child is protected by the law”.
At mitigation, the defence lawyer stated that the accused had no history of anti-social behaviour, that she had no intention of killing her child.
The defence added that the accused had no criminal record, she was remorseful, had sought the court’s leniency and that she asked for a non-custodial sentence.
Justice Mwongo said that although under the circumstances of the incident the best conviction the state would potentially have achieved is manslaughter, even then, there was no evidence that the accused was aware that placing the baby on his stomach could have led to his death.
“As such, under the circumstances, the penal consequences must be minimal and proportionate,” he stated.
The judge also took into account the probation officer’s report, which indicated that the accused had another child.
Good person
“The community knows the accused as a good person who related well with members of the community. The victim impact assessment disclosed that the child’s father laid no blame on her and that he is not opposed to her release,” he said.
The probation report recommended that the “offender is suitable for the non-custodial mode of treatment and recommended a probation order during which the (probation officer) will work closely with her parents to enable her to engage in formal education and later a course of her choice.”
The court said that during the two-year period, the woman should be engaged in a programme designed by the probation officer and include community service.
Should she be convicted of any offence within those two years, the judge said, she will be liable to re-sentencing.
