Why all murder suspects don't face the hangman
By Paul Ogemba
| October 11th 2021
Is there a perfect time and reason to kill? What would drive a mother to kill her son, whom she has nurtured for 20 years?
Is it a kilo of sugar or a packet of groundnuts or perhaps Sh2,030? Is it really worth the risk? And the regret and pain?
Well, on February 5, 2017, Christine Boit was faced with a similar predicament. Her anger saw her pay a big price.
On September 29, this year, she was found guilty of murdering her 20-year-old son Kipkemoi Boit.
Boit, who was suspected to be a village thief, was killed at Sesya village in Kabarnet, Baringo County.
On the material day, Christine accused her son of breaking into her house, where he allegedly stole Sh2,030, a kilogramme of sugar and a packet of groundnuts.
After realising that her money, sugar and groundnuts were missing, Christine alerted his son’s friends, who went looking for him at his hideout at the local market centre.
When they found him, they took him home to his mother, who out of anger, started beating him with the help of the mob, who had joined the boys she sent to look for him.
Beaten to death
They beat him senselessly leading to his death.
According to the mother’s evidence in court, Boit was a serial thief, who had troubled the villagers by stealing their properties. He had been arrested on two occasions.
However, Christine was not jailed for the death of her son.
Justice Justus Bwonwong’a ruled that although she had a common intention of participating in her son’s murder, she did not do so intentionally and substituted the murder charge with manslaughter, before setting her free.
Justice Bwonwong’a acquitted Christine and put her on a year probation with condition that she does not commit another crime.
“I have considered the fact that the deceased was a habitual thief and in the premises, I sentence the accused to a conditional discharge for one year, but if she commits another offence, she will be brought back for a stiffer penalty,” ruled the judge.
Christine is among many accused people, who despite being charged with murder, receive a lighter sentence for manslaughter or get acquitted with the courts’ finding that the killings might have been justified under the circumstances they happened.
According to a criminal lawyer, John Swaka, it is not uncommon for people charged with murder to get acquitted or have their charges reduced to lesser manslaughter depending on the circumstances leading to the offence.
Swaka explained that in such instances, the courts are convinced that the person who committed the offence had no time to think about their actions.
“It is possible for a murder suspect to be acquitted if the action was not premeditated. It happens when the court finds that the killing took place during the heat of the moment, whereby the action was so sudden and the person had no time to think,” said Swaka.
Crimes of passion
He added that this is why crimes of passion, where a person who killed another for sleeping with his or her spouse, the suspect, ends up being acquitted or gets lesser sentence because they acted out of the ‘heat of passion’ and had no time to think of the consequences.
This is what befell George Kailikia, who was found guilty of killing Jacob Munyiri over a fight for a girl.
His charge was commuted to manslaughter.
In August, this year, Justice Edward Muriithi ruled that Kalikia had no malice aforethought or intention to kill his rival.
He added that although the man had confessed to committing the crime, the right charge would be manslaughter, which carries a lesser sentence.
“The court finds that the defence of provocation is available to the accused. Any reasonable person, who had been hit because of spending time with a lady, who he genuinely believed to have been his girlfriend would have reacted and it is unfortunate that the fight resulted in death,” ruled Muriithi. The incident happened at Kirima village in Tigania East, Meru County on February 17, 2014.
Kalikia is said to have gone to pick up his 21-year-old girlfriend, who was a student in a nearby secondary school.
As he was escorting the girl back home, he was followed by the deceased (Munyiri) who was riding a motorcycle and had an axe.
Munyiri confronted him (Kalikia) claiming that he had stolen his girlfriend. He removed the axe and started chasing Kalikia with intention of hacking him.
Since he could not catch up with Kalikia, the deceased threw the axe at him, hitting him at the back.
Kalikia then retaliated, got hold of the axe and threw it back at the rival. The axe caught the deceased on the head, killing him on the spot.
Justice Muriithi ruled that the circumstance of the case and the actions of the accused fits into the provisions of provocation, which could not translate to an offence of murder.
“It could be argued that after the botched attempt to cut him with the axe, the accused was so provoked and acted out of the ‘heat of the moment’, manifesting in his attack against the deceased using the very same axe,” ruled Muriithi.
The judge relied on Section 207 of the Penal Code, which states that when a person who unlawfully kills another, but does the act which causes death in the heat of passion caused by sudden provocation and has no time to cool off, is only guilty of manslaughter and not murder.
Murder is justified
Lawyer Wokabi Mathenge, also agreed that sometimes, murder is justified before the court especially if the judge is satisfied that the killing was not intentional.
“Some times murder is justified under the law depending on the circumstances under which the killing took place. It may be that the person was acting in self-defence or the person was provoked and out of anger, did something that led to death,” said Mathenge.
Another criminal lawyer, Dorine Kali, stated that most police officers, who are charged with murder end up being acquitted or sentenced to a few years in jail especially when the court finds that the killing happened in the line of duty.
According to Kali, such police officers do not plan that they are going to kill and it just happens that shooting takes place leading to the murder charges.
Justice Florence Muchemi, in one of her judgments, in which she found the prosecution had failed to prove murder charges against a man who killed his friend for calling him an “uncircumcised boy”, stated that a murder charge can some times not stand unless the motive is established.
“Some times, it is the accused persons who is provoked by the actions of their aggressors, which leads them to react resulting to the death which can only be termed as manslaughter,” ruled Muchemi. Justice Muchemi made the remarks in the case where Stephen Wachira was charged with the murder of Charles Kabua in Nyeri South sub-County, in Nyeri County.
The prosecution’s case was that Wachira was drinking at a local pub when Kabua came and insulted him as an uncircumcised boy.
Provoked by the insult, Wachira got hold of Kabua for a fight, but they were separated by the other patrons.
Agitated, Wachira told Kabua to accompany him to the nearby river so that he could show him his manhood to prove that he was circumcised.
Patrons at the bar stated that they saw the two walking out together, but the next day, Kabua was found dead by the roadside.
It was suspected that Wachira killed him. He was arrested and charged with murder.
But Justice Muchemi ruled that the evidence, which showed that there was provocation, did not constitute murder and commuted the charge to manslaughter.
In Bungoma, Justice Stephen Riechi found Patrick Wanjala guilty of hacking Fred Wesonga to death, but concluded that the offence did not constitute murder and commuted it to manslaughter on account that the accused was acting in self-defence.
The incident happened on August 30, 2018, at Manani Village in Webuye, Bungoma County. It was said that Wanjala and Wesonga were neighbours.
The prosecution’s case stated that on the fateful day, Wanjala, was in his shop when Wesonga went with a panga (machete) and a quarrel started.
Then the deceased drew out the panga and attacked Wanjala, injuring him on the hands and thighs.
Wanjala wrestled him to the ground and after overpowering him, took the panga and retaliated.
The weapon pierced through Wesonga’s chest leading to his death.
“Upon considering the evidence, I am satisfied that the accused is the person, who inflicted the injuries on the deceased on the chest resulting in his death.
“I, however, find that the accused committed the offence under provocation and commute the murder sentence to manslaughter,” ruled Riechi.
Justice Patrick Otieno handed Michael Mutwiri a non-custodial sentence for which he will spend three years on probation after his charge of killing his father was reduced to manslaughter. Mutwiri was charged with hacking his father to death in May 2018 after a domestic quarrel and a disagreement with his mother.
According to the judge, evidence from the residents and the accused family revealed that he did not intend to kill his father.
Judge Otieno ruled that he (Mutwiri) was best suited for the non-custodial sentence to be counselled and reintegrated to society.
“The local administration feels the environment at home is conducive for the accused rehabilitation since most of the residents believe he did not commit the offence on purpose.
“In empathy, his mother and siblings claim they have healed and are open to welcome him back home,” said Justice Otieno.
Then there was the case of the son of a former minister, who was jailed for only 14-months in 2009 for the murder of a motorist.
Albert Kubai Mbogori, son of former Assistant Minister Nteere Mbogori was driving from Ongata Rongai, Kajiado, on the night of December 1, 2007, when his car was involved in an accident at a police roadblock near Bomas of Kenya. After an exchange of insults with people in the other car, he walked back to his car and sped off, but a few metres down the road, he reversed to the scene.
A fight ensued between him and a group of five men. He drew his gun and fired but the bullet strayed and hit a motorist, Benjamin Rahedi, who was driving past.
The victim died in hospital after several weeks.
Mbogori was charged with murder, but the then High Court Judge Muga Apondi commuted it to manslaughter and handed him a 14-month jail sentence. The judge ruled that although the killing was not premeditated, it could have been avoided if the accused was cautious and courteous enough to report the accident to Lang’ata Police Station and leave the officers to investigate.
For Philys Njeri, her mental illness got her off the hook from a possible death sentence when Justice Kanyi Kimondo ruled that her mental status could have contributed to her killing her son in June 2018.
“The facts of this case are truly tragic. The accused, acting like a possessed person, admitted to killing her young son. But I consider that she has a recurring psychiatric illness and has been on medication,” ruled Justice Kimondo.
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