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Judge’s ruling opens window for convicts to seek freedom

By Kamau Muthoni | April 13th 2019
Justice Eric Ogola.

A High Court’s declaration that two sections of the Penal Code are contradictory and unconstitutional has opened a flood gate for convicts jailed for attempted robbery with violence to seek release.

Justice Eric Ogola observed that the sentences provided for attempted robbery with violence under sections 297 (2) and 389 of the Penal Code give different sentences hence infringing on the suspects’ right to fair hearing.

Section 297(2) reads that anyone charged with attempted robbery with violence should be sentenced to death while section 389 gives seven years for the same offence.

This came up during a case in which Peter Muindi was challenging death sentence slapped by a magistrate’s court, and confirmed by both the High Court and Court of Appeal.

Muindi, who had been charged and convicted alongside Jimmy Musila, had exhausted his criminal case appeal process for the criminal charge against the two in 1999. He has been serving life sentence after the death one was commuted by the President.

He had tried his luck by filing a constitutional case, saying he had new compelling evidence to secure his release but it was equally dismissed.

The man did not despair, he filed yet another petition and this time targeting the laws used to sentence him. This time lady luck had turned her eyes on him as Muindi is now a free man after spending 20 years behind bars.

“It is the finding of this court that the conflict between Sections 279(2) and 389 of the Penal Code violates the petitioner’s rights. Having served a sentence in excess of seven years’ imprisonment, be forthwith and are hereby released from prison unless held for reasons not indicated in the petition,” the judge ruled.

Muindi was charged in 1999 and sentenced to death by the chief magistrate’s court. Aggrieved, he lodged the first appeal before the High Court and subsequently a second appeal in the Court of Appeal. Both appeals were dismissed.

He then filed petitions 113 and 114 of 2010 arguing that he had new and compelling evidence that he was not involved in the robbery. This was, however, dismissed.

The Director of Public Prosecution opposed the case.

He argued that a Constitutional court lacks powers to re-hear and re-determine a criminal case whose appeal has been determined by other courts.

He argued that the only window available on the apparent conflict would be to approach the Supreme Court.

According to the DPP, the effect of freeing Muindi would be to upset the hierarchy of the courts as he alongside Musila were properly tried, convicted, sentenced and used all avenues of appeal.

While dismissing DPP’s argument, the judge found that Muindi had a right to seek redress even if he had exhausted his chances to be set free.

He observed that MPs seemed to have created two sentences - least and extreme - for the same offence.

He said that out of the case, Muindi ought to have benefited from the lean sentence.

“In my reading of both provisions of the Penal Code, the drafters of the legislation seem to have created two sentences for the offence in question. As a result, a conflict emanated that can only be resolved by way of amendment. Be that as it may, the Constitution courtesy of Article 2 is the supreme law and any other legislation is subordinate to it,” he ruled.

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