Jowie, Monica's family in a legal showdown over the death penalty handed to him

Joseph Irungu alias Jowie before at Milimani Law Courts in Nairobi on March 13, 2024. [File, Standard]

A legal showdown is looming between the family of Monica Nyawira Kimani and her killer, Joseph Kuria Irungu (Jowie), after her brother George Kimani urged the High Court to allow them to participate in the case challenging the constitutionality of the death penalty. 

Immediately after Justice Grace Nzioka handed Jowie the sentence in 2024, he filed a case, arguing that the punishment provided was against the right to life and curtailed his chance to plead for bail after being sentenced.

“The right to life is therefore the mother of all rights. Without the right to life, other rights do not exist. The petitioner thus avers that the death penalty not only negates the right to life, but it abolishes the right. The petitioner further avers that the execution of capital punishment by hanging is barbaric and dehumanising and substitution by other means of killing condemned persons is just as barbaric and should not be countenanced in modern Kenya,” his lawyer Andrew Muge argued.

Jowie sued the Attorney General and the Director of Public Prosecutions.

However, Kimani filed the application to be enjoined in the case as an interested party. He told the court that his family had an identifiable stake in the fresh case as victims of the gruesome death.

Kimani insisted that it would be unfair to lock them out as Jowie killed his late sister.

“As such, it would be prejudicial to our Family and a contravention of the principles of natural justice if we were denied the opportunity to participate in the Petition herein despite being the family of the Victim, whose gruesome murder was occasioned by the petitioner herein. I believe that aforementioned stakes in this matter by our Family are proximate and identifiable to the subject matter of this petition and the same are neither remote nor peripheral,” argued Kimani.

However, Jowie opposed the application. He argued that his case was purely about the government’s actions against his rights and not what transpired before that.

He argued that from the face of it, the deceased’s family was coming on board to oppose his plea for being released on bail and resentencing.

“If the proposed interested party is joined on the basis that its family member was the victim in the underlying criminal case, the family of every victim in every capital case in Kenya has the same claim, and there is no principled basis for refusing any of them. The joinder of an open-ended class of opponents would render the Petition unmanageable, delay its determination, and prejudice the Petitioner, who has been on death row for more than two years with a stalled appeal,” argued Jowie.

 Attorney General Dorcas Oduor and Director of Public Prosecutions Renson Igonga asked Justice Gregory Mutai to dismiss the petition. 

AG argued that the Constitution does not include the right to life as one of the absolute rights that may not be limited under Article 25 of the Constitution. 

She argued that it is clear that courts have powers to send a convicted murderer to the gallows or hand a lighter or alternative sentence.

“ Kenyan courts have held that the death penalty is a proportionate punishment for the offences committed, which in many cases result in the loss of life, and the loss of dignity for the victims and that it does not amount to cruel, inhuman and degrading punishment,” the AG replied.

On the other hand, the DPP said that it would be unfair for a court to hand a sentence and then have the convict released on bail pending appeal. He asserted that the right to bail ends once a person is sentenced by a court of law.

“The petitioner was convicted by a properly constituted court and is undergoing punishment because of that conviction, which stands until it is set aside on appeal. The petitioner cannot be set at liberty on bail pending appeal for reasons that he is a convict who does not enjoy the fundamental rights and freedoms enshrined in Article 49 and 50 of the Constitution of

Kenya, 2010,” the DPP argued.

Igonga further argued that Jowie had not provided evidence to show how his rights were violated.

During the sentencing, Justice Nzioka said that the prosecution had proved that Jowie had premeditated the killing of Nyawira. At the same time, the judge observed that the 36-year-old then killed the deceased in cold blood and left her tied in a bathtub.

The other factor that Justice Nzioka relied on in declining to order Jowie to serve a jail term was that he burned the kanzu he wore on the night of the murder in a bid to conceal evidence.

According to the judge, the prosecution also proved that Nyawira never provoked Jowie.

She then delved into his character, noting that a pre-sentencing report had shown that Jowie was a man of double personality.

She observed that the lead investigator, Chief Inspector Maxwell Otieno, had described Jowie as a dangerous person as he was allegedly involved in a fight after he was released on bail.

Justice Nzioka said that after factoring the pre-sentence report, Jowie’s mitigation, Nyawira’s family submissions and those of the DPP, she had no other conclusion than to rule that Jowie suffers death.

The case continues on December 16, 2026.