They say the law is an ass, but a review of the death sentence may be making it much more than that.
A Supreme Court ruling on December 14, 2017, declared the mandatory death sentence unconstitutional. The result has been that capital offenders are now winning early freedom while those convicted for minor offences are getting harsher jail terms.
A close look at some judgements from the courts last week points to a gap that allows capital offences to attract lesser jail terms than minor offences.
In the first case, the High Court enhanced a three-year sentence to seven for a man who stole his employer’s sheep.
Although the accused, Victor Wanjala, admitted to committing the offence and asked for leniency, Justice Ruth Sitati gave him four more years, noting that livestock theft attracted a minimum of seven years.
“As for the sentence, the minimum sentence upon conviction for the offence of stealing stock is seven years while the maximum sentence is 14 years. What this means is that the sentence imposed by the learned trial magistrate was illegal," ruled the judge.
"In the circumstances, I set aside the sentence of three years' imprisonment and in lieu therefore, I sentence the appellant to seven years imprisonment from the date of original sentence,” the judge ruled last Wednesday.
On the other hand, the Court of Appeal quashed a death penalty handed to two men who violently robbed a bar patron of a mobile phone and money.
Although Court of Appeal judges Kathurima M’inoti and Agnes Murgor found that robbery with violence had been proved, they ordered that George Munyinyi and Peter Kaniu should walk free.
The two were freed after serving seven years in jail.
“The complainant did not suffer any significant injury, only superficial ones, inflicted by bare hands in the course of the robbery. In these circumstances, we are satisfied that the death sentence imposed on the appellants is completely disproportionate,” the judges ruled.
“We hereby allow the appeal, set aside the sentence of death imposed on the appellant and substitute therefore an order sentencing the appellant to the period already served,” they ruled.
In what is now changing the tide in criminal law, the courts have set a new precedent of defining harm to mean actions by extreme, intentional killers and unapologetic culprits - these are the ones who will be condemned to hang.
Lawyer Cliff Ombeta explains that judges now have the latitude to give sentences from probation to death depending on the case.
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“People think that the death sentence was scrapped, which is not the case. The Supreme Court gave judges the latitude to decide cases on merit and gravity,” said Mr Ombeta.
He said the sentence handed to a person who knowingly hurt another and does it several times will not be the same as to one handed to a group of people who rob and threaten a person without causing harm.
He also noted that under a plea bargaining agreement with the State, a culprit can be granted probation.
“Take an instance where there are three people who have snatched your bag; that is still robbery with violence but there is no harm that has been done. It’s different from stabbing a person several times,” said the lawyer.
According to penal law, the punishment for capital offences such as murder, treason, oath-taking for criminal activities by proscribed criminal outfits, robbery and attempted robbery with violence are a ticket for hanging.
But the courts are slowly moving away from the death sentence. Instead, one’s behaviour and demeanour during trial may determine whether they go to the gallows or how long they stay in jail.
By ruling that a mandatory death sentence for capital crimes was unconstitutional, the Supreme Court cut judges some slack in meting out capital punishment.
The case that led to this ruling was filed by two men, Francis Karioko and Wilson Thirimbu, and was determined by a six-judge bench composed of Chief Justice David Maraga, his deputy Philomena Mwilu, and justices Njoki Ndung’u, Jackton Ojwang, Smokin Wanjala and Isaac Lenaola.
They ruled that judges should consider the age of the offender, whether he or she was a first offender, whether they pleaded guilty or not, the current behaviour of the offender and evidence of remorse.
Judges were also given space to determine whether the offence was in response to gender-based violence, if there is any probability of rehabilitation and social re-adaption, and any other factor they deem relevant.
In one unique case, a game ranger who killed a herds boy had his death sentence reduced to 30 years on appeal.
Jonathan ole Kini was sentenced to hang by High Court judge Roselyn Korir in 2015 for killing Simon Koli two years before.
The accused had tracked Koli from Narok to Nairobi, gone to his home, called him out and shot him dead following a disagreement over two missing bulls.
The incident happened in Maasai Village, Embakasi, Nairobi, on June 25, 2013.
In his appeal before justices Daniel Musinga and Kathurima M’inoti, the accused argued that Koli had a club and that he pressed the trigger in a scuffle.
But the judges disagreed with him.
“The fact that the deceased had not attacked the appellant; and the part of the body that was shot; we are satisfied that the learned judge was right in holding that the appellant had malice aforethought and therefore the charge of murder had been well proved,” they said.
However, they decided to waive the death penalty.
“In the circumstances, we must interfere with the sentence that was passed by the trial court. In so doing, we have to take into consideration the fact that the appellant committed cold-blooded murder against a defenceless person and the appellant’s mitigating submissions,” they ruled.
Last week, the courts saved two men convicted of robbery with violence from the gallows.
The two - Daniel Gichimu and Sylvester Odero - slashed their victim's hand before robbing her in 2004. However, she raised the alarm and fought back, prompting the suspects to drop the bag and flee.
The court reduced the sentence to 15 years, ruling that the cut was mild and the handbag had been returned.
“We also take note of the fact that the infliction of violence on prosecution witness one was minimal and the item robbed from her was also recovered. In our view, a sentence of 15 years imprisonment would suffice in the circumstances,” ruled justices Roselyn Nambuye, Daniel Musinga and Gatembu Kairu.