How Kenyan killers are getting away with lenient sentences

On the Christmas eve of 2014, Joseph Tobiko returned from a local pub where he had been drinking, stabbed his wife, Mutoka Ole Sai, in the chest and fled.

The mother of two died in hospital two days later.

Tobiko was later arrested and charged with murder.

But on May 16 this year, he struck a plea bargain with the prosecution in which he agreed to plead guilty to a lesser charge of manslaughter.

The High Court on June 2, this year, jailed him for seven years after he admitted killing his wife without provocation.

The plea bargain deal spared him from the hangman's noose.

It almost spared him of serving more time in jail too.

Having spent one year in remand, Tobiko had asked the High Court to allow him serve a non-custodial sentence, arguing he had learnt a lesson in prison.

He had also contended that he was the sole bread winner of his two children.

The court rejected his plea.

"I have considered the circumstances surrounding the case and the mitigation tendered by the counsel for the accused. I note that the accused stabbed the deceased out of the blue and without any provocation whatsoever," Judge Wilfrida Okwany ruled.

"I still believe that this is a case where non-custodial sentence would not be appropriate so that the accused, together with others who are in the habit of attacking others without provocation, can learn that such actions attract the heavy wrath of the law," he said.

Tobiko is one among hundreds of offenders getting away with grave crimes or even a chain of them- by pleading to lesser charges.

Analysts say plea bargaining is gaining popularity because it saves Kenya's justice system time and money that would have gone into investigating and proving court cases before handing down proportionate judgements.

The Criminal Procedure Code (Amendment) Act 2008, which was assented to by former President Mwai Kibaki on the eve of Christmas, and which commenced on December 30, 2008, legalised the concept.

Although the office of the Director of Prosecution says that people are still skeptical about being told to agree to having committed an offence to secure a light punishment, more offenders are going for it.

Deputy director of prosecution, Jacob Ondari, says plea agreements is still a new concept in the country and has not received massive acceptance by those charged with committing criminal offences.

Ondari pointed out that plea bargaining is not centred only on murder cases.

He said that those involved in robbery and drug trafficking have the window to use plea bargain, especially when the State wants to go after the main culprits.

"The concept is a widely acceptable way of solving cases. When you want to prosecute a main culprit in an offence, you can enter into an agreement with others involved in order get them," he said.

Currently the DPP's office does not have the exact number of cases which have been concluded under plea bargain arrangement.

Lawyer Gideon Solonka supports the plea bargain concept.

An effective justice system, he opines, ought to teach the offender a lesson and not promote the 'eye-for-eye concept' of by slapping them with death.

He said that bail, mitigations and plea bargain are internationally accepted as tools for alternative dispute resolution.

"The essence of punishment is for retribution, to deter others but the issue of convicting a person to death from a moralist point of view does not make sense. A person is already dead and thus it does not help sending him or her to the gallows. A person can be punished and feel it while alive," he says.

Another lawyer, Victor Odondi says that a majority of the cases that are convicted under plea-bargaining have clear evidence against the accused.

The law, he says, is an ass - it has its good and bad side.

While concept saves a lot of resources and time involved in prosecuting a case, it can also be abused, resulting in lesser sentences for offenders.

"You can have a full hearing and the suspect is released due to lack of evidence. When the person pleads guilty you manage the probability of them going without a punishment but in a corrupt country such as ours it can be misused. It ought to be used in rare cases," he says.

Still, plea bargaining has seen serious offences receive relatively light sentences.

On July 28 this year, a mother of three was sentenced to one year probation for killing her husband over a land sale dispute.

On June 22, 2015 Kerubo's husband, Thomas Ntambo, woke her with news that he wanted to sell a piece of the family land. She was opposed to the idea, and a quarrel ensued, in which she hit him with a club on the head.

Ntambo died the following day.

Initially, Kerubo faced murder charges. But upon agreement with the State, she pleaded guilty to manslaughter.

She pleaded for a lean sentence, saying she had two young children, aged five and three years, to feed.

High Court Judge Wilfrida Okwany agreed with her.

She ruled that Karen Kerubo had already learnt how manage her anger in the one year she had spent in remand.

"I have considered the unfortunate circumstances that led to the death of the deceased in the hands of his own wife. It is quite regrettable that the couple decided to settle their differences through a violent confrontation," she said.

She ruled that Kerubo's family needed her because the country's justice system did not have provisions for them.

"I find that a non-custodial sentence would be ideal in this case," she ruled.