Three conflicting judgments that were issued at around the same time last week by justices Jessie Lessit, Hillary Chemitei and Robert Limo have exposed the dilemma facing judges in Kenya today when dealing with capital offences.
In Kitui, PN, as he has been identified in court papers, had approached the High Court for resentencing, hoping to get a reduction of his 15-year sentence for defilement. He got the opposite. The judge last week slapped him with a 23-year sentence, saying the lower court had instead been sympathetic to him.
On the same day, in Nakuru, Charles Muthee Kariuki, who had been sentenced to death for a murder he committed in 1999 was being set free. Like PN, Kariuki had applied for resentencing, citing the now famous Muruatetu ruling.
And in Nairobi, Emmanuel Wekesa got off with a slap on the wrist for murdering a Kenya Defence Forces soldier two years ago. He got a nine-year sentence after mitigation. He argued he was a first offender.
PN got a higher sentence after it emerged that he had HIV when he defiled his victim, Kariuki walked free since he had already spent 19 years in prison, while Mr Wekesa got a lean sentence because he was a first offender, among other things.
The Penal Code provides for a mandatory death penalty for the crimes of murder, robbery with violence, attempted robbery with violence, administering an oath purporting to bind a person to commit a capital offence and treason.
The law also directs that any person who defiles a child shall be convicted to a prison sentence of between 15 years to life, depending on the age of the victim.
Today, however, things have not only changed, but become confusing since the Supreme Court in 2017 said the mandatory death sentence was unconstitutional.
This means that judges do not have the death sentence as the only option in cases where the accused is found guilty of capital offences.
However, the continued lack of guidelines on how sentences are supposed to be issued for capital offences as directed by the Supreme Court is giving judges in the lower courts a lot of leeway to issue punishments as they wish.
Francis Muruatetu was a former Administration Police inspector who had been handed the death sentence for the murder of businessman Lawrence Magondu in 2000. He appealed the death sentence up to the Supreme Court, the result of which was the landmark ruling whose ripple effect abolished the mandatory death penalty.
The ruling, now simply referred to as Muruatetu in the corridors of justice, not only changed the legal landscape locally, but is referred to in similar situations in all commonwealth countries.
The team that was set up by the AG was also supposed to review the existing legislative framework on death penalty with a view to formulating amendments and proposing a law that was supposed to give effect to the judgment by the Supreme Court.
“The death penalty is not an effective deterrent. It does not stop people from committing capital offences,” says the report.
“The Task Force recommends and urges Parliament to take the bold but rational next step of leading Kenya into a more just and humane future by abolishing the death penalty entirely,” it adds.
However, to date, the 233-page document is still on the back burner. In the absence of such a law, judges, who got swamped with resentencing applications immediately after the Muruatetu ruling have been giving judgments without a proper framework.
Capital offence suspects who were charged after the Muruatetu ruling have been caught up in the mess. An analysis by the Nation of several cases filed after 2019 up to last week, shows that judges are handing down anything between five and 25 years as sentences for murder.
Suspects who take plea deals, or those who are charged with non-aggravated murder are either walking free, getting supervised probation outside prison or getting up to five-year prison sentences. This, according to our analysis, is the easiest way to get away with murder.
Take the case of Kericho Judge Asenath Ongeri, for instance. She set free Peter Kiprotich in December, even after he was found guilty of murdering his brother Charles Chelongoi.
The two brothers from Kedowa village in Kericho had entered into an agreement with their neighbour to allow her cows to graze on their ancestral land in Chebewor village. In return, the neighbour, referred to as Beatrice in court papers, was to give them a litre of milk every day as payment.
This arrangement worked well until Kiprotich moved to Londiani from their village. In his absence, Mr Chelongoi consumed the milk by himself. This led to a conflict between the two brothers.
The dispute between the two one day degenerated into a physical fight, during which Kiprotich, who was armed with a knife, stabbed his brother on the neck.
However, after being charged with murder, Kiprotich applied for a plea bargain, which was granted. His charge was then reduced to a manslaughter. What set him free, however, was his mitigation arguments just before sentencing.
“The accused person said he committed the offence in the heat of the moment after provocation. The counsel further submitted that the family of the deceased has reconciled with the accused person and he is taking care of the deceased person’s children,” the court heard during mitigation.
“The learned counsel for the accused further submitted in mitigation that the deceased and the accused were siblings, and the family has lost both – one to death and the other to incarceration,” the court was told.
In Siaya, chief inspector of Kenya Prisons Patrick Yego, was three weeks ago, also set free despite the court finding that he had shot and killed Mr Zaccheus Okoth during the contested presidential elections in 2017.
“From the evidence adduced, the accused was authorised to hold the Ceska pistol, which he used that material night to shoot the deceased. He targeted the deceased’s chest area where a single bullet was sufficient to kill the deceased,” noted Justice Roselyn Aburili while pronouncing her judgment.
“In the circumstances, I find and hold that the accused person is guilty the offence of murder as charged, contrary to Section 203 of the Penal Code. I hereby convict him accordingly,” said the judge.
Due to the above circumstances it was largely expected that the chief inspector was going to get a harsh sentence for his crime. Everything was, however, flipped during mitigation, largely due to a pre-sentencing probation report and the suspect pleading for a non-custodial sentence so that “he does not lose his job”.
“The convict is the sole breadwinner for his aged parents. The convict is married with three children, all minors. His wife is said to have deserted him after his arrest and moved to her parents’ home, leaving the minor children with their grandparents and the convict during the time he was on bond,” the court was told.
“Most of the siblings are in college and rely on the convict for their fees and upkeep. The convict’s parents rely on him for farm inputs. The offence committed was serious as loss of life is not a simple matter. The deceased’s family lost one of their own,” said Justice Aburili in response to Yego’s mitigation arguments.
The judge then proceeded to set the suspect free by sentencing him to a non-custodial sentence and three years’ probation. It was a shock to Mr Okoth’s family, who had -- two weeks before the ruling -- heard the judge categorically say that the chief inspector was guilty of murder.
But why would a judge pronounce herself that a suspect before her is guilty of a serious offence such as murder and then two weeks later let the same person walk free?
The Pandora’s Box opened by the Muruatetu case and the lack of a legal framework to guide the ripple effects on the effecting of justice has been so huge that all the candidates who appeared before the Judicial Service Commission (JSC) for the position of Chief Justice were taken to task over it.
"I have no problem with the final result of the Muruatetu case. I understand the persuasive reasoning of the Supreme Court in that there should be scope for punishing responsibility by way of the sentence to be meted out,” former Director of Public Prosecutions Philip Murgor told the JSC.
During her session before the JSC, Justice Martha Koome, who is set to be sworn in as the Chief Justice, told the panel that she will follow up with the AG to find out if the sentencing proposals that were handed over to him are ready.
“There is a need for a coherent sentencing approach,” said Justice Koome.
