While sentencing Joseph Kuria Irungu alias Jowie to death for the murder of Monica Kimani, High Court judge Grace Nzioka said the killing was intentional and it was not as a result of provocation.
The judge added that it is not that Jowie did not have an opportunity to reflect on his actions before committing the offence because it was premeditated, planned and executed with subsequent destruction of evidence.
In the judge’s view, the offender deserves no mercy for what he had done to the victim.
After the death sentence what next for Jowie?
His lawyer Andrew Muge said he would appeal against both the sentence and the conviction, as provided for in law within 14 days from the date of the judgement.
According to Mr Muge, the prosecution failed to give exculpatory evidence (evidence that would have absolved him of the offence), including the photographs of a pair of shorts he allegedly wore on the night of September 19, 2018.
The lawyer said Jowie wore a pair of brown khaki shorts, with side pockets. But the one produced in court, and which linked him to the murder- as blood samples collected on it were Monica’s- were different.
He said DNA results found on the straps that were used to tie Monica, showed that there were two unknown males, who accessed the house.
Mr Muge further said they will also be raising the issue of the time recorded at the entrance to Lamuria Gardens Apartment. He said there was contradictory evidence as to whether he left the house at 9pm or 11pm.
Will Jowie face the hangman?
Kenya has not executed anyone on death row since 1987 when Hezekiah Ochuka and Pancras Oteyo Okumu were hanged for their role in the attempted coup.
Reports published by lobby groups, who have sought for the abolishment of the death penalty state that from independence in 1963 to 1987, only 280 persons out of 3,584 people sentenced to death, were executed in Kenya.
In 2009, President Mwai Kibaki commuted the sentences of more than 4,000 convicts from death to life imprisonment. His successor Uhuru Kenyatta commuted the sentences of another 2,747 in 2016 to life imprisonment.
The latest commutations were done by President William Ruto in July last year, of all death sentences from November 21, 2022, to life imprisonment as recommended by the Power of Mercy Advisory Committee (POMAC).
POMAC is chaired by Attorney General Justin Muturi and derives its powers from The Power of Mercy Act 2011, which allows the President to grant a free or conditional pardon to a person convicted of an offence.
What does the death sentence mean?
Death in Kenya is carried out by hanging. Under section 332(3) of the criminal procedure code, a death warrant must be issued and signed by the President for the death to be carried out. The warrant must also state the place and time of the execution. The death warrant must also provide directions as to the place of burial or cremation of the body of the person to be executed.
What other offences carry a death sentence?
The penal code imposes a death sentence for the offences of murder, treason, robbery with violence, attempted robbery with violence and administration of unlawful oaths to commit capital offences and the International Crimes Act.
Have there been attempts to abolish the death sentence?
Yes. Several human rights groups have argued for the abolishment of the death sentence. In 2017, the Supreme Court declared the mandatory nature of the death sentence unconstitutional. With the quashing of the section, judges hearing capital offences have the discretion to impose the sentence they deem appropriate after considering the gravity of the offence and the mitigation of the offender.
The top court judges said a person facing the death sentence is most deserving to be heard in mitigation because of the finality of the sentence.
What does a life sentence mean?
In Kenya, it is assumed that the life sentence means the number of years of the prisoner’s natural life, which ceases upon his or her death. Lobbyists, however, want this to be abolished and Parliament to come up with minimum and maximum sentences for serious offences such as murder, robbery with violence and attempted robbery with violence.
The lobby groups argue that a life sentence is also punitive and defeats the whole purpose of sending prisoners to jail- of rehabilitating them. They argue that keeping them in jail until they pass on, is also expensive given that a prisoner spends more money for their upkeep in prison.
The Supreme Court declined an invitation by two convicts to define what constitutes a life sentence. Instead, the six judges of the apex court (Justice Mohammed Ibrahim had been indisposed) directed the Attorney General and Parliament to commence an enquiry and develop legislation on the definition of what constitutes a life sentence.
What has Parliament done so far?
MPs have been mulling over abolishing the death sentence and replacing it with life imprisonment, by amending the Penal Code Act. The Penal Code (Amendment) Bill 2023, pushed by the leader of majority in the National Assembly Opiyo Wandayi seeks to erase the imposition of the death sentence against capital offenders.
The Bill is currently before the Justice and Legal Affairs Committee (JLAC) of the National Assembly for prepublication scrutiny.
Mr Wandayi said abolishing the death penalty will help to preserve the fundamental right to life under Article 26 of the Constitution and put an end to cruel, inhuman and degrading treatment and punishment of condemned persons, occasioned by the enforcement of the death penalty. The MP added that the abolishment of the death penalty will also stop the psychological trauma that convicts go through.
