Cholmondoley: Justice has been served

Justice Muga Apondi had promised a light sentence and he lived to his words, handing Tom Cholmondoley a sentence of eight months. In an exclusive interview with the Nation, Mr Cholmondoley who was accused of killing stonemason Robert Njoya three years ago, said justice had been served.

“I was very nervous. It was a life-stopping moment, but I believe justice has been done,” said Mr Cholmondeley at the basement cells of the Nairobi High Court on Thursday.

Justice Apondi had said as he passed judgment: “I hereby wish to impose a light sentence on the accused to allow him reflect on his life and change to an appropriate direction.” This means Mr Cholmondeley will have to serve eight more months, starting Thursday, on top of the three years he has already spent at the Kamiti Maximum Prison.

The judge on Thursday said, in reaching his verdict, he had considered the fact that Mr Cholmondeley has been held in custody for slightly over three years since he was arrested. Immediately he pronounced his verdict, the more than 10 prison warders guarding Mr Cholmondeley whisked him off to the basement.

Earlier on, he had sat on a bench along the corridor leading to the cell rooms, lovingly holding hands with his girlfriend, Sally Dudmesh, and this is where the scion of Kenya’s British settler aristocracy narrated to the Nation how he woke up and prepared for the big day.

Washed face

As early as six in the morning, the rancher had already washed his face and underarms with some rain water he had collected the previous night in preparation for his journey to the High Court. “I couldn’t take a shower in the morning because there was no water at Kamiti,” he said.

He then dressed up and said a little prayer to his maker. Fellow inmates had already gathered outside his cell at Block G to wish him good luck. And it seems his prayers and the good-luck wishes worked well, so well that the Director of Public Prosecution, Mr Keriako Tobiko, told the Nation he will appeal for the enhancement of the sentence, which he termed too lenient.

Mr Tobiko said the sentence doesn’t meet the ends of justice since an innocent life was lost. “The discretion of sentence lies with the judge, but eight months is far below the mark. “We will need to put precedents before the court of appeal in our efforts to enhance and correct judgment,” said the DPP.

Mr Justice Apondi said the discretion to sentence opens the way to both flexibility in response to facts of cases and to unjustifiable differences in the personal or local approach of judges.

He repeated an argument the prosecution had made to the court during the proceedings; that offenders should be treated equally irrespective of their wealth, race, colour and sex. He also supported the defence’s assertion that both sides need to heal.

Ugly scenes

“The offence was committed in Soysambu, which is an area around Naivasha. Needless to state, there was unprecedented ugly scenes based on tribal clashes following the last General Elections and, following death of Njoya, there were ugly scenes reported there,” said the judge.

He added: “This court understands the undercurrents that went with both unfortunate events.” Justice Apondi further noted that Cholmondeley did not have malice aforethought, meaning he never premeditated the killing because he didn’t have any grudge with Mr Njoya.

The judge also said the trial subjected Cholmondeley to the due process of law. “He was arraigned in court for a serious offence without any regard to his wealth, status or race. The above proves beyond doubt that the criminal justice is robust, independent and functioning,” he said.

However, on the issue of the pledge by Mr Cholmondeley’s family to help the Njoyas, he said he will not delve into it because it can be addressed by a civil court. Cholmondeley was found guilty of manslaughter last Thursday by the court.

Relying heavily on the evidence of a best friend of the accused, rally driver Carl Tundo, Justice Muga Apondi found that Mr Cholmondeley shot and killed Mr Njoya three years ago, but spared him death by hanging because a murder charge could not be sustained.

He found that the accused did not have intentions to kill when he shot Mr Njoya at the Soysambu Ranch on May 10, 2006. “This case has been proved beyond any reasonable doubt, both through direct and circumstantial evidence. Due to lack of any malice aforethought, I reduce the charge to manslaughter. The circumstantial evidence adduced irresistibly leads to the guilt of the accused,” the judge had said.

“The conduct of the accused after the shooting clearly shows that he shot Mr Njoya by mistake and became extremely remorseful on what he had done.” Mr Justice Apondi noted that Cholmondeley gave first aid to Mr Njoya and even fully cooperated with the police by going back to the scene and explaining what happened.

“The above is not the conduct of a vengeful and malicious person. The accused had aimed to kill the dogs and succeeded in finishing two of them. That was a risky decision because he ended up shooting the deceased and killing him,” he had said.

The judge dismissed evidence by the defence that had sought to link the fatal shooting to Mr Tundo’s gun, dismissing the argument as an afterthought that lacked merit. The judge said if the issue of the second gun was genuine, the defence ought to have raised it when Cholmondeley was arrested. Mr Cholmondeley is entitled by law to lodge an appeal against the sentence.