When there’s murder in the family, even courts can’t arbitrate

Saturday January 19 2019

A gavel.

Zahir Osman Ali faced a maximum of ten years imprisonment if the magistrate had opted for a custodial sentence. FILE PHOTO 

ELVIS ONDIEKI
By ELVIS ONDIEKI
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A three-year jail term was hanging over Zahir Osman Ali’s head like the sword of Damocles at a Mombasa court a week ago. Then, suddenly, he was a free man.

Yes, he had caused the death of his brother Rehan Kassim on November 26, 2018 through dangerous driving.

Yes, the law prescribes a jail term of up to three years for such an offence. But Mombasa Resident Magistrate Christine Ogweno saw no reason to jail him.

DISCUSSIONS

“I find no value in meting any other physical sentence. Let the accused live with the consequences of his actions. The accused is discharged,” she said as Mr Osman sobbed in the courtroom.

The magistrate added that the resultant death of Mr Osman’s brother, who was in a vehicle he was driving when it hit an embankment, was punishment enough.

It is a ruling that made front page news and dominated discussions due to the reasoning of the magistrate.

It was, however, not the first time a court has handed a light sentence to an accused person who had killed a family member.

Saturday Nation has dug up cases where courts have given dramatically lenient sentences to individuals who killed their kin.

A notable case is the 2012 decision by a judge in Eldoret where Benjamin Cheruiyot, who had beaten up his 14-year-old daughter to death, was jailed for only eight hours.

He had found her in bed with a 17-year-old neighbour.

In court, Mr Cheruiyot pleaded guilty to the charge, and he knew it would cause him a long time behind bars. But when High Court judge Festus Azangalala read out the sentence, it was just eight hours for him.

SYMPATHISE

The saving grace was a provision in law called temporary insanity, where judges sympathise with a killer because of the provocation they must have faced.

But it is not always that pleading temporary insanity can get a person off the hook.

According to Mr Onyango Jamusumba, a lawyer currently working with the Office of the Director of Public Prosecutions (ODPP) in Vihiga County, temporary insanity mostly works with crimes involving loved ones.

“Temporary insanity can only be used as a mitigating factor in a crime of passion,” said Mr Jamusumba, who was quick to note that he was commenting in his personal capacity and not on behalf of the ODPP.

“The offence may be reduced to manslaughter which attracts a lesser penalty because the action taken by the accused was not premeditated but happened in the heat of the moment,” added the prosecutor.

The eight-hour jail term Mr Cheruiyot received was unique, as the usual method of setting free such offenders is to give them a non-custodial sentence instead.

Examples abound of people who should have been jailed for life but only got non-custodial sentences. In March 2018, a Kiambu court set free Simon Ngigi despite the fact that he had killed his brother James Waweru on July 19, 2014.

On that fateful day, the court heard, Mr Waweru had arrived home drunk and started hurling insults at Mr Ngigi.

They engaged in a fight that abated for a while but Mr Waweru would later attack Mr Ngigi with a rungu, which made the latter hit the former with a panga in the head, a fatal blow that killed him later that night.

NON-CUSTODIAL

Mr Waweru had initially denied the charge but later entered a plea bargain with the prosecution, where he owned up to the killing in exchange of a lighter sentence.

The sentence would come in the form of a three-year non-custodial sentence.

“The circumstances of the crime do not point to a particularly well-planned or violent conduct on the part of the accused which should attract societal opprobrium or disapproval in the form of a prison sentence,” reasoned Mr Justice Joel Ngugi.

Then there was Truvena Kwamboka who killed her mother in July 2014.

The court heard that the mother came home drunk and grabbed Ms Kwamboka’s youngest child then started a fight.

Mad with anger, Ms Kwamboka picked up a panga and hit her mother on the head, killing her.

In court, Ms Kwamboka entered a plea bargain and said she was remorseful for her actions.

She also reminded the judge that she was a young widow with three children aged below 10 years.

“It is desirable that she goes back to her children to give them maintenance and upkeep necessary of the children from the mother, as there is none to ever provide for these children,” ruled Mr Justice Crispin Nagillah as he gave her a two-year non-custodial sentence.

Plea bargaining, like the one done by Ms Kwamboka, is aimed at getting a lenient sentence according to lawyer Desmond Otwal.

UNFAITHFUL

“It is mostly arrived at through negotiations between the prosecution and the defence. In such negotiations, the prosecutor, depending on the nature of offence, may reduce a charge of murder to one of manslaughter or may decide to prefer a charge of simple robbery instead of robbery with violence which carries a death sentence,” Mr Otwal said.

“This is done in return for a guilty plea by the accused for the lesser offence. A plea bargain should be voluntary and not induced in any form,” added the lawyer.

Mr Jamusumba added that lawyers ordinarily advise individuals to enter a plea bargain when the “evidence against the client is overwhelming”.

“In plea bargaining, the client gets the advantage of negotiating a lesser sentence upon pleading guilty. The prosecution also has the advantage of finalising the matter within a very short time. The court is also able to reduce the backlog,” he said.

Ms Kwamboka’s case is almost similar with that of Collet Thabitha Wafula who stabbed and killed her husband Lukas Oduor in May 2016 in Siaya County.

The court heard that Ms Wafula was angered by her husband’s accusation that she was unfaithful.

“A fight ensued between the two, and in the process the accused proceeded to another room, picked a kitchen knife, returned to where the deceased was and stabbed him at the back once,” the court record states. “The deceased died immediately after he was stabbed.”

Ms Wafula, then aged 24, told the court that she had three children aged below five and that she was sorry for her husband’s death.

The judge noted that in his judgment.

COUNSELLING

“She is remorseful and that the death of her husband would haunt her for the rest of her life knowing that it was due to her acts that she is now a widow,” said JA Makau, the judge.

“I note that she is both a victim and the accused in this matter and that her immediate family members and the community have forgiven her. The accused needs counselling to overcome the trauma and as such I find that she needs community-based rehabilitation,” the judge added.

Then there was a case where two boys fought in the house and one died. It was finalised at the High Court in Kisii in March 2015.

The offending boy, called MO in court reports because he was just 16 when the offence happened, cut his brother with a panga as he tried to shield his elderly father from being attack by the brother.

 MO entered a plea bargain and out of it got a one-year non-custodial sentence.

“The accused is a child offender. He killed his brother in the defence of both his father himself,” ruled Justice Nagillah.

A non-custodial sentence, according to Mr Jamusumbah, gives a big degree of freedom. A person under that sentence will be subjected to a number of punitive measures, he said.

“He may be put under probation for a period of time. He may also be ordered to serve under the Community Service Order, commonly known as CSO,” said the prosecutor.

“Under CSO, the convict is required to do manual work in public institutions for a period of time. Also, under a non-custodial sentence, the convict may be allowed to go home without any conditions,” he noted.

PROPORTIONATE

Mr Otwal, the lawyer, added: “Non-custodial sentences include communal work, probation, or detention at the president’s pleasure.”

But it is not always that offenders get non-custodial sentences, as Charles Kibe learnt in July 2017.

Mr Kibe killed his sister Grace Nduta at their home in Kiambu County as they fought over breakfast cereal.

Both the family and the prosecution urged Justice Joel Ngugi to give Mr Kibe a non-custodial sentence.

But the judge had other ideas, sentencing Mr Kibe to three years in prison. The reason, the judge said, is because he not only killed his sister but he also cut her up into pieces and disposed of the body parts at various areas.

“There are certain circumstances when egregious post-offence conduct can be a relevant factor in determining proportionate sentence. Such is the case, as here, where the accused person goes to great length to hide his crime,” reasoned the judge.