A man who murdered 3 members of a family has escaped the death sentence after the High Court nullified his conviction.
In a landmark ruling, Justice Anyara Emukule said under the new Constitution, a death sentence is not consistent with the right to life.
He therefore handed John Kimita Mwaniki a 30-year jail term after he found him guilty of murdering the three family members during ethnic clashes in Molo District ahead of the 2007 General Election.
Mwaniki, and others not before court, raided the home of Ms Esther Bore on November 27, 2007 at Ngarua location and killed her daughter, Ms Rose Chemutai.
They also murdered her 2 grandsons, Reuben Kipng'eno and Shadrack Kipkoech.
Justice Emukule said Article 26(2) (on deprivation to life) is inconsistent with the right to life under Article 26(1) of the Constitution.
"Section 204 of the Penal Code provides that any person convicted of murder shall be sentenced to death," the judge said.
He went on to say that the Court of Appeal recently held that even where punishment is prescribed, the court should inquire whether there are special circumstances why the court should not pass out the prescribed penalty on the accused.
The question Justice Emukule sought to explain was whether the death penalty underpinned by Article 26(3) and (4) of the Constitution was consistent with the right to life under Article 26(1).
"The constitutional question would be whether those provisions are consistent with each other," he said.
However, the judge dismissed an alibi by the accused, saying evidence adduced in court and circumstances surrounding the murders proved he was guilty.
He noted that in mitigation, the accused had stated he was arrested when he was 20 years old and his parents were displaced in 2006 during ethnic clashes.
The defence lawyer had also told the court the accused was remorseful and did not deserve a death penalty.
Source: All Africa News, June 16, 2011
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