Courts call for a review of an eye for an eye forms of punishment

Penal Code provides for the punishments that a court can issue. [File, Standard

There are many Kenyans who still remember the days when the criminal justice system operated on the basis of an eye for an eye.

This mode of punishment was especially common during the colonial era when convicted murderers were sentenced to die by hanging.

Those found guilty of armed robbery but escaped the hangman's noose had to endure lengthy jail terms, State-sanctioned caning besides being subjected to hard labour.

Even though inhumane punishment is no longer rampant, Juma Mzuri Chovu, for example, is a poster child of the changing face of punishment.

He was convicted for stabbing his wife, Mariam Kitsesho, to death in Miritini, Mombasa, in 1999.

Chomvu, who accused his wife of having extra-marital affairs, was on the run for five years before he was arrested in Kaloleni in 2004.

His fate appeared to have been sealed by the Court of Appeal in 2009 due to the fact that he had no alibi when Mariam was killed.

Although no execution had been carried out in Kenya in over 20 years, prisoners on death row could never rest easy.

Review of sentence

Before he was thrown an unexpected lifeline, Chomvu had resigned his fate to either going to the gallows or serving a life sentence.

On December 14, 2017, the Supreme Court outlawed mandatory death sentences in the landmark Francis Muruatetu's murder case. And with the stroke of the pen, paedophiles, rapists and armed robbers got a second bite at the cherry.

Some like Chomvu returned to the courts seeking a review of their sentence.

His record as a model prisoner who was also a team leader as well as the best in his tailoring class bolstered his case and in May 2020, Justice Erick Ogolla granted him his freedom and he is now serving a three-year suspended sentence.

His liberty was pegged on not committing any offense and reporting to Changamwe Police Station commander on June 1 and December 28 of every year.

Muruatetu and six others had been convicted of the murder of businessman Lawrence Magondu in 2000 and sentenced to death.

Following the abolition of the death penalty, Justice Ngenye Macharia reduced Muruatetu's sentence to 30 years.

His sister, Rose Njoki, got 35 years, Wilson Thirimbu and his sister Anna Ngonyo had their sentence commuted to 50 years in jail, David Njuguna and Stephen Njoki got 40 and 30 years, respectively, while Stephen Wambua was handed a 20-year sentence.

After the landmark judgment in 2018, thousands of appeals were filed for re-sentencing, creating confusion among judges and magistrates on whether other sentences given to offenders in criminal cases could benefit from Muruatetu's precedence.

However, last year, the Supreme Court again shut the door for all convicts seeking to resentence based on Muruatetu's judgment.

In effect, the decision by Chief Justice Martha Koome, her deputy Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, William Ouko, Njoki Ndung'u and Isaac Lenaola ended chances for convicts jailed over sex crimes, robbery with violence and treason whose cases are in lower courts.

Justice Koome said that it is only when the mandatory sentences provided for sexual offenses, robbery with violence and treason are challenged that the court will determine whether it should be left to the judges and magistrates to hand minimum sentences.

"The decision of Muruatetu and these guidelines apply only with respect to sentences of murder as provided under sections 203 and 204 of the Penal Code," said Justice Koome.

A year later, the Court of Appeal re-ignited another call for a review of criminal laws to weed out mandatory sentences that were sanctioned by Parliament.

Although the focus has been mandatory or minimum sentences handed to sex pests, robbers and murderers, Court of Appeal judges Wanjiru Karanja, Patrick Kiage and Jamila Mohammed have found that mandatory sentences passed by the August House are a breach of the separation of powers.

This now brings into focus laws detailing traffic, corruption and minor offenses among others.

In Kenya Section 24 of the Penal Code provides for the punishments that a court can issue. They include both jail terms, the death penalty, and non-custodial sentences.

In an appeal filed by John Gichuki Mwangi who was challenging 20 years sentence handed by the magistrate's court, the Court of Appeal has found that sentences should not be cast in stone, as spelt by lawmakers.

According to the three judges, Parliament arrogated its powers of courts to determine the best punishment for a person found to have committed an offense.

The court found that charging a person under a certain law does not automatically justify a general sentence.

Dispense justice

"We acknowledge the power of the Legislature to enact laws as enshrined in the Constitution. However, the imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers, in view of the fact that the legislature cannot arrogate itself the power to determine what constitutes appropriate sentences for specific cases yet it does not adjudicate particular cases hence cannot appreciate the intricacies faced by judges in their mandate to dispense justice," the judges said.

"This being a judicial function, it is impermissible for the Legislature to eliminate judicial discretion and seek to compel judges to mete out sentences that in some instances may be grossly disproportionate to what would otherwise be an appropriate sentence."

Justices Karanja, Kiage and Mohammed were of the view that justice is not all about giving a complainant a reprieve but also about finding a remedy for an accused person.

"Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenize them and justify a general sentence... In the end, courts have a duty to dispense justice not only to the complainants but also to accused persons," the bench headed by Justice Karanja said.

In the case, Gichuki was charged at Karatina Magistrate's Court for defiling a 15-year-old girl and the State called five witnesses.

The court heard that on March 8, 2011, he lied to the minor's mother that he had been sent by her father to collect Napier grass with her.

It is then he defiled her after threatening to stab her with a knife. He then took her to his house, where he resided with his wife. A scuffle ensued between the man and the wife and attracted his extended family.

Amidst the commotion, the teen ran into the bushes and eventually found a safe haven at a neighbouring home where she spent the night. The following day, she met with her parents who were looking for her.

Gichuki denied the charges. In his reply, he told the court that his accusers impacted him in order to take away his land.

After hearing the rival arguments, the magistrate's court ordered that he serves 20 years in jail. Aggrieved, he appealed the decision but Justice John Mativo upheld the sentence.

However, the Court of Appeal lowered it by five years.