Are Kenyan courts being too lenient with murder?

Relatives of Albert Mbogori weep as he was being escorted to the Nairobi High Court cells to begin his 14-month jail term for killing Edward Rahedi. PHOTO/ CORRESPONDENT

A string of recent sentences for manslaughter considered by some quarters as too lenient have triggered debate over whether the country should adopt a mandatory minimum sentence for the offence.

Lawyers are at odds over whether recent judgments handed down by Mr Justice Muga Apondi are proportionate to the crimes committed.

Last week, Albert Kubai Mbogori, a motorist who accidentally shot and killed businessman Benjamin Rahedi following a road rage incident, got 14 months in jail for his crime.

Angry response

The sentence drew an angry response from the victim’s family: “Besides suffering the pain of his loss, we endured the slow and agonising process of attending hearings at the High Court in Nairobi, believing that even though nothing can bring our beloved Ben back, at least knowing that his killer has been sufficiently punished would confirm that he (and us) can rest in peace. (We consider) the lenient sentence of 14 months . . . a travesty of justice.”

Lawyers interviewed by the Sunday Nation expressed contrasting views on the issue.

Nairobi lawyer Macharia Kahonge said that this week’s sentence and that of eight months handed to aristocrat Thomas Cholmondeley were too lenient.

“There are no hard and fast rules, of course, but the judge should seek to use the punishment as a deterrent to others,” he said, while advocating the introduction of a minimum sentence for manslaughter.

But another counsel, Mr Kioko Kilukumi, adopted a more cautious position.

“Mandatory minimum sentences would fetter the discretion of judges which is something that is frowned upon in most jurisdictions. The judge may look at the specific circumstances and decide that it is imprudent, for example, to destroy both the families of the offender and the accused with an exceedingly harsh sentence.”

Mr Kilukumi said that the length of trials in Kenya, some of which last up to three years, was a factor in sentencing.

Former Law Society of Kenya chairman Ahmednasir Abdullahi took a more radical position, saying that the recent sentences were “too harsh”.

“Judges consider the fact that there was no malice aforethought (knowledge that one’s act or omission will result in the death of someone). If someone kills another while sleepwalking, for example, I don’t see why he should be jailed for more than a month,” he said.

In addition to the Mbogori and Cholmondeley cases, other recent cases at the High Court have attracted what have been described as light sentences.

On June 10, a 22-year-old woman received a two-year suspended sentence for killing her drunken cousin.

The suspended sentence means Ms Mary Wamaitha, who pleaded guilty to killing Martin Juma, would serve the sentence at home, as long as she did not commit another offence during the two years.

And on May 6, 24-year-old watchman Leindoi Sinyoko walked free after he was accused of killing a patron in a bar during a fight.

Mr Sinyoko had admitted killing Martin Gichane but the judge found Mr Gichane was to blame for starting the fight and that Mr Sinyoko acted in self-defence.

Raging for years

While debate on sentencing guidelines for manslaughter is relatively new in Kenya, it has been raging for years in other countries.

The American Bar Association has been campaigning against mandatory minimum sentences in a number of states for several years. On average, people convicted of manslaughter in the US earn 34.4 months in jail, which is about three years.

In the UK, the Sentencing Advisory Panel, an independent body which advises the Court of Appeal, recently recommended introducing stiff sentences (of at least three years) for manslaughter.

It defended this position by pointing to Attorney General’s Reference (No 33 of 1996) in which it was said: “even when a particular type of manslaughter is isolated from the rest, it has to be recognised that it covers a wide field and, if justice is to be done, sentencers must not be put in straitjackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation, he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years.”