Contradiction saves man from death sentence

By Wahome Thuku

On September 5, 2003, three people went to the home of one Kennedy Kamwathi on Riverside Drive, Nairobi, at 3.15pm.

At the gate, they told an employee that they had been sent by Kamwathi to fumigate the compound. Two other employees, Philip Etale and Philip Ombuya, doubted but a Mr Ernest, the third worker allowed them in.

Once inside, the three strangers and Ernest grabbed Etale and Ombuya and threatened to harm them with knives.

Etale screamed for help and his cry attracted the attention of other workers in the neighbourhood, among them William Shivachi.

Held and charged

The strangers panicked and two of them escaped by jumping over the hedge. The third one was apprehended and taken back to Kamwathi’s compound. He was Evanson Muiruri Gichane. Officers from Kileleshwa Police Station were called and arrested him. He was later charged before a Kibera Magistrate court with attempted robbery contrary to Section 297(2) of the Penal Code. The charge read that while armed with dangerous weapons namely knives, Muiruri and others not before court, attempted to rob Phillip Ombuya Ngayo of household goods and at/or immediately before/or after the time, threatened to use violence to him.

Witnesses were called including Kamwathi, his two employees and Shivachi. In his defence, Muiruri claimed he was innocently walking from his kiosk along Suna Road, Nairobi, to a bus-stop on Riverside Drive, but before he could reach, he was surrounded by a mob claiming he was a thief. He was then dragged to a nearby compound from where police took him. He was later charged for an offence he knew nothing about.

The magistrate found him guilty and on May 5, 2004, he was convicted for the attempted robbery and sentenced to death. He appealed to the High Court. Justices Jessie Lesiit and Milton Makhandia heard the case and on September 26, 2006, dismissed it.

The judges held that for attempted robbery with violence, the only sentence prescribed by the law was death. Muiruri went ahead and appealed to the Court of Appeal on three grounds. One was that the trial was a nullity as none of the witnesses were sworn before the magistrate court. That argument was dismissed as the file indicated the witnesses were duly sworn.

The second ground was that the charge sheet did not disclose what the robbers attempted to steal. Muiruri’s lawyer argued none of the witnesses said what household goods the robbers had attempted to steal.

Enough detail

His submission was that under Article 50(2)(b) of the Constitution, every accused person has a right to a fair trial, which includes the right to be informed of the charge with sufficient detail. The judges rejected this argument holding that it was clear to the court that the three men and Ernest, their accomplice, intended to steal from Kamwathi’s main house.

The final ground was that the death sentence was unlawful. Muiruri’s lawyer submitted there was a contradiction between Section 297(2) under which his client was charged and Section 389 of the Penal Code.

Section 297(2) reads: "If the offender is armed with any dangerous or offensive weapon or instrument, or is in the company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death."

Section 389 reads: "Any person who attempts to commit a felony or a misdemeanor is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years."

The judges agreed there might be a contradiction between the two sections. Muiruri had been convicted for attempted robbery with violence, which under Section 297(2) was punishable by death yet under Section 389, he would not have been liable to imprisonment for a term exceeding seven years. "The apparent conflict in the law can only be resolved by Parliament," the judges said. "But the appellant is entitled to the less punitive of the two," they said.

The judges also considered an earlier decision where the same court held that death penalty, as the only punishment in murder cases was inconsistent with the letter and the spirit of the Constitution. So on December 10, last year, the court said the appeal against the conviction was unmeritorious and it was dismissed. But his appeal against the legality of the sentence was found to have merit.

The judges considered that Muiruri was sentenced to death on March 5, 2004. They substituted that sentence with a jail term that would result in his release as he should have been imprisoned for not more than seven years.

Though Muiruri was still found guilty of attempting to rob Ombuya at Kamwathi’s residence, he was freed on December 10, last year.

—The writer is a court reporter with The Standard. Email: [email protected]