Why murder and robbery convicts may be set free

The impeccable tie, knotted on a white shirt was hugging the neck which had just escaped the hangman’s noose.

It was tucked inside a grey suit and hanging on the lanky shoulders of the bespectacled man with a haunted look.

And the gold-coloured pen he placed on top of a diary completed the picture of a ‘makeshift’ advocate on a mission.

By way of introduction, the suit wearer, Aloise Onyango Odhiambo blurted out that he was a convicted robber, just out of Kamiti Prison. He was let out recently after spending 16 years in a cell, waiting to be hanged.   

But as he strutted in our newsroom this week, he did so like a man in a hurry and with a purpose. Time is out of joint for him, and he ordered his steps as the man cursed to set it right. For almost two decades, Odhiambo has petitioned and appealed to have his life back after he was condemned to die for violently robbing passengers in a Nairobi matatu.

He owes his freedom to two benefactors who are still locked up in Kamiti. And now the the self-taught paralegal is on a mission to assist death row convicts access justice. (See separate Story) 

In 2017, when two  Kamiti inmates challenged the mandatory death sentence handed to capital offenders, they were pleasantly shocked when the Supreme Court ruled that the High Court hears the case again for sentencing.  

Two years later, Francis Kariuko Muruatetu and Wilson Thirimbu who are now celebrated as heroes by convicted murderers and armed robbers in all the 38 prisons across the country are still waiting to be re-sentenced by the High Court in Nairobi. 

They had no idea they were opening the prison cell doors to release some of the country’s most dreaded murderers and violent robbers.

Muruatetu and  Thirimbu are still cooling their heels at the same drab cells at Kamiti prison’s block for the condemned where they have been from the day they were convicted, together with other relatives and suspects, for the gruesome murder of Lawrence Githinji Wangondu in February 2000. (See a separate story)

For weeks, we have been investigating how this came to be. Our investigations have revealed that despite going to the High Court for more than 20 times for re-sentencing as was ordered by the Supreme Court on December 13, 2017, they are yet to get justice.

“The file could not be traced at the High Court. They have been languishing in Kamiti Maximum Security Prison because their original file has gone missing,” says the ex-convict, Aloise Odhiambo.

The two made history when their petition at Supreme Court, challenging the constitutionality of the clause that provides that a magistrate trying suspects in robbery with violence or murder cases to face mandatory death sentence, was allowed.

Denied a fair trial

In their unanimous verdict, Supreme Court judges, Chief Justice David Maraga, Philemon Mwilu, JB Ojwang, Smokin Wanjala, Njoki Ndung’u and Isaac  Lenaola declared that although death penalty was not unconstitutional, the Penal Code providing mandatory death sentence was a violation of the law.

“We find that both petitioners are deserving of a remedy as they were denied a fair trial. We have looked at comparative case law to give us guidance as to how this should be done.”

The court caused ripples in the prisons when it pronounced: “The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution.”

The court also ruled that Muruatetu and Thirimbu be taken back to the High Court for rehearing on sentencing only, on priority basis and in conformity with the judgment.

In the landmark judgement, the court further directed that Parliament and Senate enact laws or regulations to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment.

Further, the Attorney General was given 12 months to give a progress report to the court on the issue of re-sentencing. The Sunday Standard investigations found that the problem of the missing files was not only confined to the Muruatetu and Thirimbu case. Thousands of other convicts do not know their fate as their files can not be traced.

Kiambu Law Courts, sources indicated has been hit by a major hitch because  re-sentencing cases have not been heard, subjecting the affected death-row convicts to uncertainty.

We obtained a list of 37 cases whose files can not be traced at the Kiambu Law Courts where convicts claimed they had been approached to offer facilitation fee for their retrieval from the archives.

When the Sunday Standard raised the issue of the missing files with Anne Amadi, the Chief Registrar of the Judiciary, she explained that it has not been possible to carry out an audit on all the cases that needed re-sentencing.

“I suppose it is the issue of old cases. Some of these cases that need re-sentencing are more than 20 years old. It takes some time to go through the archives to get the files. This has posed a challenge to some courts,” Amadi added.

She however ruled out that some files could have been destroyed as happens to old cases whose owners have exhausted all avenues of appeals or the cases had had been closed.

However, Maryann Njau-Kimani, the Senior Deputy Solicitor General who chaired the taskforce on the implementation of  Supreme Court’s death penalty decision, explained that a comprehensive report was tabled to the Chief Justice on December 13 last year.

According to Njau-Kimani, as at February this year, there were 4,819 death row convicts out of whom only 1457 had had their cases re-heard for sentencing while 3360 are yet to be re-sentenced.

According to the statistics released by Njau-Kimani, Kamiti Maximum Security Prison has the highest number of death row inmates at 1117, followed by Naivasha (889), Kisumu (444), Shimo La Tewa (355), Kibos (350), Nyeri (302) and Manyani (323).

Dashed the hopes

Interestingly, although Kamiti has the highest number of capital offences convicts, only 4 out of 1117 have have had their cases re-heard by February. Eldoret has tackled only 4 out of 87 while Naivasha had handled 507, leaving a balance of 382.  

Although the death row convicts are optimistic that once they are re-sentenced they may walk to freedom, not all appellants have secured their freedom.

On July 4 this year, High Court judge Florence Muchemi dashed the hopes of two convicted murderers who had appeared before her for re-sentencing in a petition filed in Embu.

Patricio Njiru Kirangi and Jonathan Njeru Mutunga had originally pleaded with the court that their sentenced be reduced to the time served because they had already spent 19 years in jail.

The State was however opposed to the release of the two who had hacked a woman, thrown her body parts into a pit latrine simply because they had failed to find her husband who they were pursuing over a land dispute.

Muchemi’s verdict read: “I have carefully perused through the petitions and find nothing in mitigation. Ending the life of a human being should not be taken lightly for it adversely affects families including innocent children who are deprived of parental love and support.”

In another case however, High Court judge Luka Kimaru freed Peter Matiku Muhiru who had been in prison for 16 years for violently robbing a Naivasha businessman, Peter Mburu Gikonyo of shs2,750 on October 3, 2001.

In Garissa, Aden Shariff Abdi and Arte Abdi Wito who violently robbed and killed businessman Haji Omar Ibrahim have been given a new lease of life.

High Court judge, Charles Kariuki re-heard their case and determined that at the time, Wito who was armed with a gun was 18 years and was impressionable while his co-accused, though aged 25, did not have a dangerous weapon. Kariuki referred the two to the magistrates court for re-sentencing.