The Supreme Court has declined to move the law of self defence to benefit persons who kill their partners after enduring prolonged abusive and violent relationships.
In a petition filed by death row inmate Ruth Wanjiku Kamande, the top court had been asked to rule that such women could use the “battered woman syndrome defence” to demonstrate that their only means of escaping the abuse and saving their lives was to kill their partner.
The judges, led by Chief Justice Martha Koome, said the issue was not properly before the Supreme Court as it had not been litigated at both the High Court and the Court of Appeal.
“We are afraid that, despite the importance of this issue, it is not properly before us and as such the only proper recourse is for the court to dismiss this appeal. The remedies sought by appellant relating to her conviction and sentence cannot therefore issue. At any rate the severity of sentence is a matter of fact not appealable in a second appeal in line with Section 361 of the Criminal Procedure Code,” said the judges.
They sided with the prosecution in finding that the issue of battered woman syndrome as a defence had not been raised by Wanjiku in either the trial or appellate courts.
However, the judges described Wanjiku’s bid for introduction of the legal principle of battered woman syndrome to be a defence in the criminal cases in Kenya, as an “extremely pertinent issue”.
Assistant Director of Public Prosecutions Evelyn Onunga had argued that being a battered woman should not justify a murder or other criminal actions.
Wanjiku, a former Lang’ata Women’s Prison beauty queen, was sentenced to death in 2018 over the September 20, 2015 murder of her boyfriend Farid Mohammed Halim.
She claimed that the incident was the result of an abusive and toxic love relationship with Halim and that the prosecution had not presented any evidence to contradict her testimony.
Wanjiku said that the relationship was fraught with challenges, including physical and psychological abuse, and that she was constantly victimised in an abusive and turbulent relationship.
She stabbed Halim 25 times leading to his death. She was sentenced to death by the High Court and the same was upheld by the Court of Appeal in 2020, which held that her defence of self-defence was unbelievable given the evidence tabled by the prosecution.
Through her legal team led by former Attorney-General Githu Muigai, Wanjiku wanted the Supreme Court to set aside her conviction for murder and replace it with manslaughter. Subsequently, she wanted the top court to impose a more lenient sentence taking into account the doctrine of the battered woman syndrome as a mitigating factor.
But the full bench of the Supreme Court unanimously dismissed her appeal and ruled that the applicability of the ‘battered woman syndrome’ as a defence under Kenya’s criminal law needed clarification and development of law.
They added that the doctrine, being a new legal principle in Kenya, also needed consideration through the hierarchy of Kenyan courts before the Supreme Court could address the same.
“We find that in the instant matter, the elucidation, clarification and development of the law on the issue of the battered woman syndrome, would particularly benefit from the consideration of the facts in an appropriate matter; the testimony of victims and witnesses including the specialist analysis by expert witnesses on relevant related subjects. It would also benefit from the interpretation and application of laws and legal principles by the courts below (Court of Appeal and High Court) before the matter could be considered ripe for final determination at this court,” said the judges.
Regarding her prayer for the Supreme Court to find that the battered woman syndrome defence is applicable in Kenya and may accompany the defences of provocation and self-defence, the judges said that the doctrine has not attained the status of a stand-alone defence.
It has to be raised during trial in aid or as an extension of one of the existing legal stand-alone defences: self-defence, provocation or temporary insanity.
The judges said the courts cannot singularly elevate the battered woman syndrome to a stand-alone defence of itself, as to do so would amount to usurpation of legislative mandate bestowed upon Parliament.
They further held that a suspect seeking to rely on the battered woman syndrome during trial should do so at the earliest opportunity, in the same manner as any other defence.
This, the court explained, does not prevent the suspect from raising it during mitigation upon conviction or prevent the court from admitting additional medical evidence at an appellate level, in exceptional cases.
In Wanjiku’s case, the apex judges said the issue of battered woman syndrome was only introduced after the Court of Appeal upheld her sentence when she was seeking certification to file a second appeal at the Supreme Court.
“The issue concerning the battered woman syndrome was raised for the first time in the application for certification before the Court of Appeal. This is of significant import to the propriety of exercise of appellate jurisdiction of the apex court in this matter,” said the judges.
Additionally, they said that at no point during mitigation did Wanjiku mention being in an abusive relationship with Halim.
Due to that, this syndrome could not be considered as part of her claim of self-defence and/or provocation, which were the defences she raised at the trial.
The State, through prosecutor Evelyn Onunga, had argued that no medical evidence was adduced by Wanjiku to suggest that she suffered consistent intimate partner violence trauma.
“Her choice to provide an unsworn testimony denied the prosecution the opportunity to test the veracity of her claims through cross examination. As a result, the battered woman syndrome is a factual issue, and since the appellant failed to provide evidence in support of it in the lower courts, the courts could only rely on the available evidence to make their findings. Therefore, the appeal lacks merit and ought to be dismissed,” said Ms Onunga.
She further stated that the syndrome should not serve as a defence in itself, but rather as support for a self-defence claim.
Ms Onunga stated that in the law of self-defence, the court must be satisfied that the accused person reasonably perceives that she is in imminent danger and that the force used was reasonable and necessary under the circumstance.
