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Let court decide fate of elderly, says judge

By Kamau Muthoni | February 7th 2019

80-year old Tom Mungai ( right) and 85-year old Mureithi Ngari are led by a prison warden outside a Nakuru law Court on February 16,2015. The two are alleged to have defiling a ten-year old girl on September 2014 at Kiambogo in Gilgil in Nakuru County. [PHOTO:KIPSANG JOSEPH]

Parliament should consider changing the law to allow courts to decide whether or not to send elderly people to jail, a judge has said.

Making a ruling in the appeal of an 85-year-old man who had been sentenced to life in prison for defiling a minor, Justice John Mativo observed that courts should have the discretion in jailing elderly people as the compulsory sentences amounted to committing them to a slow death behind bars.

Wilson Kipchirchir Koskei appeared not to comprehend what he was charged with and gave incoherent answers in his mother language.

During the trial at the lower court, English was used and the proceedings translated into Kiswahili although he did not understand.

Justice Mativo said he was of the view that the elderly should be confined to their homes under supervision and not locked up in cells.

Under supervision

According to the judge, there was no likelihood that an elderly person would reform.

“I am also concerned that some elderly inmates are being unnecessarily held in prison despite the fact that their continued incarceration does little to serve the principal purposes of punishment: retribution, incapacitation, deterrence and rehabilitation. Alternative forms of punishment should be imposed – for example, conditional release to home confinement under parole supervision – that would serve the legitimate goals of punishment," he noted.

Some elderly people, he observed, were too frail to be a danger to society or even themselves.

According to the judge, jailing the elderly could constitute infringing on their right to get a fair and a proportionate punishment for an offence.

“Keeping a person aged over 85 years in prison under the harsh conditions when he is not a danger even to himself is something that should prick the conscience of humanity and our entire criminal justice system. It is tantamount to sentencing such a person to a slow death,” ruled Justice Mativo.

According to the judge, Parliament had the mandate to come up with laws, but it was the work of the Judiciary to give punishment to offenders on a case-to-case basis.

Good intentions

“Mandatory minimum sentences are the product of good intentions, but good intentions do not always make good policy; good results are also necessary. Parliament needs to ask itself, with respect to each crime, is justice best served by having legislators assign fixed penalties to that crime? Or should Parliament leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case within a defined range?”

The judge questioned whether the Sexual Offences Act should prescribe mandatory terms or not.

“Judicial discretion is necessary for the proper discharge of court’s constitutional obligations. Time has come for Parliament to reconsider the provisions of the Sexual Offences Act, particularly on the question of taking away or limiting judicial discretion on sentencing,’’ ruled Justice Mativo.

The prosecution did not oppose Koskei’s release. It observed that he was unable to concentrate or answer simple questions.

It urged the judge to decide his fate as he was too frail to follow the case.

Justice Mativo quashed the sentence and ordered Koskei’s release, noting that his right to be fairly tried in a language he understood had been breached.


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