One of the most unique cases that can come before judges is when a person already serving prison terms commits another serious crime.
Justice Kanyi Kimondo had to grapple with one such scenario on July 31 when sentencing Samuel Ochieng Daddy, Geoffrey Obwage Ondieki, Asifu Nyakundi Onyamo and Collins Ramadhan Issa who had been found guilty of murdering a roommate at Kamiti Maximum Prison.
The four were already serving sentences having been found guilty of robbery with violence.
Dandi, Ondieki and Issa were sentenced to death while Onyamo was jailed for 10 years.
The former had their sentences, however, reduced to life imprisonment in light of the momentous decision of the Supreme Court in Francis Karioko Muruatetu & another v Republic that the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code was unconstitutional.
As Justice Kimondo noted though the ruling did not outlaw the death penalty, it left the court with discretion to impose a lighter sentence.
On the night of August 28, 2012, the four accused persons and the victim were sharing cell number 14 at Kamiti Maximum Prison.
The victim was in good health but was found dead the following morning. Justice Kimondo said that according to the pathologist, the body had scars on the chest and neck: the tongue was protruding outside which was consistent with strangulation.
“The accused committed the heinous act either in order to gain access to contraband (a cell phone) or were motivated by cravings for a homosexual relationship,” he added.
They were on September 18, 2012 to face the charge of murder.
According to a blog by Scott H. Palmer, P.C., a US law firm, in many cases when an inmate commits a serious crime while in prison, they will be faced with new criminal charges.
This is especially true for violent offences. In these situations, the inmate would be subjected to a new trial.
Thus, it follows that while the trio sentenced to serve for life will only exhaust their new sentence while still in prison, Onyamo will serve jail for extra years after completing the 10 years he was previously committed to. The four accused persons were adjudged guilty of murder by High Court Justice James Wakiaga, who was, however, transferred before he could sentence them and thus remitted the matter to Justice Kimondo for sentencing.
On July 14, the judge conducted a brief sentencing session and heard submissions from the learned counsel for the accused, S. Ojienda, and learned Prosecution Counsel, Ms Gikonyo.
He noted that the matter was a grave felony that attracts the death penalty but went on to acknowledge the impact of the Muruatetu ruling.
Having noted the facts presented by the prosecution (how the deceased met his death and the fact the accused were serving jail for another offence), the judge also took into account the mitigation tendered by their learned counsel.
Principally, Ojienda had argued that they were remorseful; that they have lost their days of youth in prison; and, that they should be granted an opportunity to open a new chapter in their lives.
In a synopsis, it was a plea for clemency, the judge concluded. He also paid heed to the pre-sentencing reports for each of them. Those relating to Dandi, Issa and Onyamo were filed on July 3 while that of Ondieki was lodged on July 20.
“The Victims Protection Act dictates that the views of the victim’s family be considered at this stage. The deceased was 40 years old and also serving a life sentence for robbery with violence.
His kin assert that at the time he met his death, he was “in the process of filing an application for resentencing”,” he added.
According to Justice Kimondo, the view of the family was that notwithstanding that the deceased was a convict, they still looked up to him and he did not deserve such a gruesome death.
The judge added that the sentence should be commensurate to the moral blameworthiness of the offender but also guided by the nature and gravity of the crime.
“As I have stated, each of the accused is serving another sentence for robbery with violence. Justice in this case can only be met by a lengthy custodial sentence. I sentence each of the accused to 20 years imprisonment,” Justice Kimondo ruled.