Probation, not prison for mothers with children, High Court orders

Justice Reuben Nyakundi. [File, Standard]

The High Court has overturned custodial sentences handed to three women with children, substituting them with probation after finding it unfair for minors to serve time with their mothers despite their innocence.

In separate landmark rulings that now reshape how courts handle mothers with children, Justice Reuben Nyakundi directed that Caren Jeptoo, Jane Kanda, and Sharon Jemeli be released from prison and instead report to the probation office for the remainder of their sentences.

The Judge emphasised that magistrates and judges must prioritise the best interests of minors, considering their age and dependency before deciding whether their mothers should serve time in custody or at home.

Justice Nyakundi also drew justification from the Holy Bible, noting that children should not suffer or be shamed for the actions of their parents. “For those who believe in the creation myth and its Holy Book, the Bible, in Proverbs 22:6, Psalms 127:3-5 and Ephesians 6:4, God tells us that children are a blessing and a gift. Their spirits are filled with innocence, joy and laughter and they are a heritage from the Lord. They should not be put to shame because their mothers are in conflict with the law,” he said.

He observed that Kenya’s prison facilities have limited day care services or nurseries suitable for children of tender years. Having a mother with a child behind bars, he said, would violate the Children Act and international statutes on the rights and welfare of minors. “I am of the considered view that even when a sole caregiver or biological mother is convicted, trial courts must consider the child’s best interests. Imprisonment of the caregiver can be detrimental to the child, and non-custodial sentences should be preferred unless the offence is so serious that custody is entirely appropriate,” he added.

Justice Nyakundi further stated that all sentences can be mitigated, except those with mandatory jail terms. He described the appeals by Jeptoo and Kanda not as errors of judgment, but as matters of compassion and mercy. “The trial courts, in sentencing breastfeeding, pregnant mothers or mothers accompanied by children, should prioritise the child’s welfare, family life and human rights to avoid incarcerating minors for offences they cannot be held accountable for,” he said.

Jeptoo, five months pregnant and a mother of two school-going children, told the court that she had acted out of desperation to provide for her family. She requested a supervised probation period of seven months, emphasising that she was a first-time offender.

Kanda, 52, responsible for a nine-month-old granddaughter while her daughter studied at university, said she committed the crime out of hardship and was not habitual. She prayed to return home to farm and care for her four other children.

Jemeli, a mother of two, including a five-month-old, explained that she was paying for her family circumstances rather than her own crime, having previously gone to Saudi Arabia to seek greener pastures. She had been sentenced to two years in custody. The Director of Public Prosecutions did not oppose the review of their sentences.