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How man walked to freedom thanks to conflicting laws

By Kamau Muthoni | July 7th 2021

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

Justice Eric Ogola in his verdict, two years ago, 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 the death sentence handed to him by a magistrate’s court, and confirmed by both the High Court and Court of Appeal.

Muindi, who had been charged alongside Jimmy Musila, had exhausted his criminal case appeal process for the criminal charge against the two in 1999. He was serving life after the death sentence 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 -this time targeting the laws used to sentence him. He was lucky and 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, he is 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 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. “The Constitution courtesy of Article 2 is the supreme law and any other legislation is subordinate to it,” he ruled.

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