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How revised laws and lenient rulings make killers get away with murder

Dilesh Sonchand Bid killed a pedestrian and injured two others at a zebra crossing one night on the Nairobi-Thika road. He was taken to court, pleaded guilty and was fined Sh105,000 for causing death by dangerous driving and being careless.

Prosecutors in the case were taken aback by the fine, which they considered too lenient and illegal. They appealed against the punishment, requesting that it be made more severe.

But Mr Justice Luka Kimaru saw nothing wrong with it. He said he would not enhance the fine because Mr Bid, who was driving a Toyota Land Cruiser, “did not cause the accident as a result of recklessness but rather as a result of momentary inattention and lack of judgement”. Neither did he suspend Mr Bid’s licence as requested by the prosecution.

The accident happened way back in October 2012 when the Thika Superhighway was under construction, and Justice Kimaru’s December 2, 2014 decision may seem like a bygone memory. But given other decisions made by courts recently in cases where lives have been lost, questions are emerging on whether the law considers some deaths to be lesser than others.

Regular revision of existing laws by Parliament and precedents set by some courts are increasingly lessening the sentences meted out against people who kill others either through road crashes or other circumstances.

LIGHT SENTENCE

An example is a decision made on September 6 this year by Lady Justice Winfrida Okwany at the High Court in Kisii. Justice Okwany saw no need of detaining a man who had killed his friend on the night of March 4.

The accused, Mr Dickson Gekonge, had entered a plea bargain with the prosecution where he admitted to having killed his drinking friend Henry Makori after a disagreement that started while they were at a chang’aa den.

In the end, the judge gave him only a two-year probation sentence for manslaughter. With that, he returned home six months after being arrested.

To the ordinary Kenyan who might not know that former President Mwai Kibaki assented to an amendment of the Criminal Procedure Code on Christmas Eve, 2008, to allow for plea bargaining, such a light sentence for a serious offence may not appear to be justice.

“That is why it is important that there must be education to litigants to understand how plea bargain operates so that they don’t feel there’s imbalance in terms of sentencing; that some people are special,” says Mr Aggrey Mwamu, the former chairman of the East Africa Law Society.

It is also not lost on observers that the concept of court sentences being a warning to would-be offenders stands to lose meaning with the less punitive sentences being meted out on those who kill.

A man who died on Gatundu Road in Nairobi’s Kileleshwa area at 3am on December 10, this year, joins the list of people killed on the road and whose families are looking up to the courts for justice.

Mr Sitati was charged with causing death by dangerous driving and the prosecution says he was drink-driving on the wrong lane when he killed the father of five.

The fact that Mr Sitati was given a Sh50,000 police bond after his arrest, ahead of his appearing in court on December 16 — meaning he was going on with his duties shortly after the incident — is sure to draw questions from some Kenyans who are often quick to complain that some influential people are left to roam free shortly after being detained.

DRIVING WHILE DRUNK

Mr Kipsanai’s death evokes memories of a guard who was killed in Nairobi’s Runda estate when billionaire businessman Joel Kibe crashed into a security barrier on the morning of February 1, 2016.

Prosecutors said Mr Kibe was driving a Range Rover Vogue while drunk. He denied charges against him and was released on a Sh300,000 bond.

As those and more cases continue in court, a look at the decisions made in cases where one party is accused of killing another in motoring incidents reveals that despite the maximum sentence for causing death by dangerous driving being 10 years, hardly has any court jailed an offender for more than three years. In fact, higher courts often reduce the sentences given by lower courts.

In October 2015, the High Court in Nyamira freed a man who had been jailed for running over a five-year-old schoolboy on the Keroka-Sotik road.

The accident happened at around 1pm on October 21, 2011 near a school at Nyaronde. Mr Gilbert Kiptum had been sentenced to two years in prison by a Keroka magistrate on April 17, 2013 but appealed against the sentence at the High Court.

Mr Justice Crispin Nagillah found that the two-year sentence was harsh and set him free, given that he had been in custody for some time.

“Although it is indicated there was a school in the vicinity, there was no sign to that effect as a warning to motorists,” stated the judge, though he declared Mr Kiptum to be at fault for causing the accident as he was speeding in his Toyota Hilux.

And in September this year, High Court judge Luka Kimaru freed a man who had been jailed for three years and three months for killing a pedestrian.

Mr Fredrick Oyugi was driving a pick-up at around 11.30 am on December 3, 2013 when he knocked down Harun Musau who was walking on a pavement. To avoid the three-year jail term, he had been given the option of paying a Sh210,000 fine.

REDUCTION OF JAIL TERM

Arguing for a reduction of the jail term, Mr Oyugi told the court that he had been in remand for 18 months before he was sentenced.

But prosecutors urged the court not to interfere with the three-year sentence, saying in fact the punishment was lenient. 

Justice Kimaru said the sentence should have been less severe had the magistrate who jailed Mr Oyugi borne in mind that in such a case, the idea is to punish the negligence and not the criminal intent.

The judge said that given the “period that he had been in remand custody before his conviction, and the period that he has served after his conviction, (Mr Oyugi) has been sufficiently punished”.

Away from traffic matters, a decision made in 2009 in a case where businessman Albert Mbogori accidentally shot dead Mr Benjamin Rahedi still draws debate in legal circles.

Mr Mbogori was sentenced to 14 months in jail for the crime, drawing an angry response from Rahedi’s family.

The case of Tom Cholmondeley was also the talk of town in 2009. High Court judge Muga Apondi sentenced him to eight months in jail despite him having shot dead Robert Njoya.

In his decision of May 14, 2009, the judge said an eight-month sentence would suffice because Mr Cholmondeley — who died in August this year — had been in remand for close to three years and the experience up to the time of sentencing had made him “reflect on his life and change to an appropriate direction”.

Granted, when a criminal court finds someone guilty of causing death, it is a step towards the aggrieved family seeking monetary compensation for loss of their kin from a civil court — but is the law blind to the quest by families seeking justice to see their relatives’ killers punished?

PUNISH THE ACCUSED

Lawyer Kibe Mungai says there is a need to understand that some deaths happen by accident and the courts try to understand the circumstances behind them before they can punish the accused.

“Sometimes death can occur in circumstances where it was not fully intended. Or sometimes there is a self-defence element to it,” he said.
In cases of motor crashes, Mr Mungai said most deaths are never pre-meditated.

“If I ram into a crowd, it’s not an accident; it’s murder. But if I was just driving and then, for some reason, somebody crosses the road, my concern was not to knock anybody. My concern was to get to my destination,” he said.

Nairobi-based lawyer Allen Gichuhi concurred. “The intention behind that is that, when you kill someone with a motor vehicle, you have to indicate whether there was mens rea — was it an intentional act or just an accident? You’re punished because of the intention. If it was deliberate, then the gravity is serious,” he said.

Mr Mungai said that pedestrians could be to blame for some accidents. “Speaking from a driver’s perspective, I know that some Kenyan pedestrians are extremely reckless… Some just cross the road, others sell wares close to the road — like this road to Nakuru, at the place called Soko Mjinga, and even at Kangemi. If you knocked somebody in Kangemi, can anybody really blame you for that?” he asked.

In cases where people who kill others have received lighter sentences after plea bargains, Mr Mwamu, the former EALS chair, said, family ties were also put into consideration.

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