Revealed: Tale of suspects without lawyers who end up frying themselves

David Kimani, 24, was sentenced to life imprisonment in 2014 for defiling a four-year-old girl in 2010 at Kabatini in Nakuru County.

Calculations will put Kimani’s age at 15 in 2010 when the offence was committed, but he was found guilty and handed a life sentence.

But as a another court was to later determine, it was unlawful for the magistrate's court to convict him as an adult although he was 20 when the sentence was passed. Kimani was a minor when the incident happened.

On January 25, Nakuru High Court Judge Joel Ngugi replaced the life sentence with two years’ probation plus the time Kimani had already served in prison. “I invoke section 191(1)(1) of the Children’s Act to sentence the appellant in a manner I deem lawful. Since he was erroneously convicted for crime he committed when he was a minor, I replace the life sentence with the time already served plus two years’ probation,” he ruled.

By then, Kimani had already served six years behind bars -- two years in remand and four years in prison.

Kimani is only a representation of the many suspects convicted not because they were guilty but for not having a lawyer to argue their case. Some of these suspects muddled their cases in cross examination, or could not notice glaring errors by the prosecution. 

This is the case of four robbery with violence convicts who were set free on May 30. Robert Kirui, Michael Terer, Weldon Tanui and Leonard Kipng'eno were alleged to have violently robbed Fred Mironga of items worth Sh8,500 on October 20, 2013 at Ngongongeri farm in Njoro, Nakuru County, while armed with clubs and pangas.

According to the appellate court, the four -- who have spent three years in prison -- would not have been convicted if they had a lawyer to help them and cross-examine the witnesses whose statements were contradictory.

They did not even give strong defences, and even in their appeal, they failed to notice that the charge sheet used to convict them was faulty.

The charge sheet, according to Ngugi, was wrong because it quoted both Section 295 and Section 296 (2) instead of referring to only 296 (2).

“The charge sheet shows that the appellants were charged under section 295 as read together with Section 296 (2) of the Penal Code Act. Though the appellants have not raised it as a ground for appeal, I am duty bound to point out that our decisional law has established that this is considered duplex charge,” said Ngugi.  

He said the offence of robbery with violence ought to be charged under section 296 (2) of the Penal Code alone because it provides the ingredients of the offence -- the offender is armed with a dangerous weapon and in the company of others.

“It would not be correct to frame a charge for the offence of robbery with violence under section 295 and 296 (2) as this would amount to a duplex charge. It is therefore defective and cannot be used as a basis to convict suspects,” ruled Ngugi.

Section 295 of the Penal Code provides that any person who steals anything, and at, or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or to property in order to steal is guilty of felony known as robbery. 

Ngugi went ahead to quash the conviction of the four, set aside the sentence imposed and set them at liberty unless otherwise lawfully held in custody.

During a legal aid service week at the Nakuru Law Courts region, coordinator Florah Bidali said suspects representing themselves do not know how to cross-examine and how to maintain confidence and independence. 

“Most suspects who choose to represent themselves do not know how to go about it. They often make mistakes and end up in jail, even those who are innocent,” said Ms Bidali.

It takes more time to train victims, give them confidence and enable them apply what they learn in theory in representing themselves in court. Prosecutors and witnesses’ statements can twist cases and trigger emotions, making suspects lose track, get afraid and fail to represent themselves well in a case. It is important for suspects in capital cases to have representation,” she said.

Rift Valley Law Society of Kenya (LSK) President Ochang’ Ajigo says not all lawyers are beyond common man's reach.