Murder and customary law sentence of camel

Decisions and sentencing procedures of the High Court in the country are binding on all the subordinate courts which must follow the precedent by law.

Even observations by the Judge not forming the core decision can have a bearing in what lawyers term as the obiter pronouncement.

With all this in mind, sometimes the High Court comes up with unusual, unorthodox or even legally inexplicable decisions and if this happens in the realm of criminal law, palates of commentators become that much more unsustainable.

One such recent Judgment is the intriguing murder case of Republic versus Leraas Lenchura decided by Honourable Justice J.A. Emukule in Nakuru.

The facts of the case were that an 89-year-old World War II veteran killed a 55 year man in the Samburu Country in circumstances which were very succinctly summarised in the judgment thus:

“On arrival, the deceased found a long line and crowd of people waiting to draw water. He made a request to fetch water first, and his request was granted. However the time the deceased was allowed to draw water was also the time of the accused.”

“So when the deceased asked the accused to draw water, the accused refused and a quarrel ensued. That quarrel degenerated into a fight and in the course of that fight, the accused stabbed the deceased”.

And then came the sting of unusual holding by the judge in this form:

“Of course under the Constitution of the Second Republic, the State has assumed a positive undertaking to provide both water and shelter to these vulnerable areas and communities. The inhabitants of these areas, like the accused in this case, have an obligation to share the limited resources in a civil and orderly manner without fights which lead to unnecessary loss of life. I think that is the situation in this case. If it were not for the accused’s advanced age, I would have given him a deterrent sentence.”

“However, because of the accused’s advanced age I fine the accused to pay one female camel to the family of the deceased, and to five years suspended sentence during which time the accused shall report once every two weeks to the area Chief?”

“The accused shall therefore be released forthwith from prison custody to serve the term in his home area and report to the area Chief as aforesaid, in additional to the said fine. In default he will serve one year imprisonment”

Firstly, reference to the colloquial Kenyan term “Second” Republic means that it is now legally acknowledged that there was the First Republic that now there is the Second Republic!

But more importantly, the sentence was the most unusual in the history of penal laws.

Breaking down the sentence, the accused was sentenced to (i) Fine of one female camel payable to the family of the deceased (ii) Imprisonment of five years  (iii) but suspended (iv) also a reporting order to the area Chief over five years (v) and in default of giving a female camel a prison sentence of one year.

Cumulatively, the sentence does not appear to be authorised by law.

All this happened under a formal Plea Bargain Agreement dated 20th June, 2012 between the Accused and the Director of Public Prosecutions.

Began to sweat

The subtle legalities which arise from the sentence are so varied and mind boggling that implementation of the sentence may well prove to be an impossibility.

Reporting to a Chief of the Area? What if the Chiefs become history as envisaged in the Constitution? Will the Chief not be usurping the powers of a probation officers?

And now who is the “family of the deceased”?  Will Succession Act apply? To whom will the camel belong! Will there be a need of an administrator?

Did the judge most unusually invoke customary law into the sentence by fining “one female camel”? What was the criteria, though my research into the Samburu or Rendile customary law make no reference to “blood money” being paid in camels, male or female.

Can a smart lawyer quote the decision in future in a murder case and plead that dictates of customary law, contrary to the law in the country which excludes customary law in penal matters, must be taken into account and compensatory methodology of punishment developed?

I hasten to add that in terms of pure justice, the judge got it absolutely right and giving customary law some form of acknowledgment in criminal jurisprudence, unlike what was propounded by colonial laws, may well be the way forward.

I have experienced the impact of customs in law. In a murder trial a witness was obviously lying blatantly. When the judge intervened and asked the witness if he would say the same under oath under his tribal customs, the witness began to sweat and even without the traditional oath, stated what was the real truth!

Until the year 2003, penal code laws were to be interpreted according to “legal interpretation obtaining in England“ but no longer — maybe there is a window for customary law to creep in our laws!

Customary law, plea bargaining, suspended sentences, fines in specie are new areas surfacing in our jurisprudence and why not?

The writer is a lawyer.

bowryp@hotmail.com