Win for DPP as Supreme court upholds Kamande's conviction , rejects abuse defence

The Supreme Court on Friday dismissed a landmark case filed by the 2016 Lang’ata Prison women’s beauty contest winner Ruth Kamande, who has been on death row for close to a decade after she was found guilty and convicted of murder.

The highest court in the land, in its unanimous judgment on Friday, said her argument that she was a victim of abuse was not raised before then High Court Judge Jessie Lesiit; instead, it came up during her appeal of the conviction and the sentence.

Nevertheless, the judgment by Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko was not all doom for victims of battered women syndrome as they ruled that if the issue were escalated from the High Court, to the Court of Appeal then, the Supreme court, in a proper case then it would give its voice.

“We find that in the instant matter, the elucidation, clarification and development of the law on the issue of the battered woman syndrome, would particularly benefit from the consideration of the facts in an appropriate matter; the testimony of victims and witnesses including the specialist analysis by expert witnesses on relevant related subjects; and the interpretation and application of laws and legal principles by the courts ante, before the matter could be considered ripe for final determination at this court,” the bench headed by Justice Koome ruled.

According to the seven judges, Ms. Kamande did not raise the defence of battered woman syndrome, either implicitly or explicitly.  They also found that her story was contradictory as she said she was not involved in a toxic relationship but rather a boyfriend-girlfriend crescendo.

The girl’s life ought to have fully flowered, showing the magnificence of an African girl and an educated one.

However, a single disastrous act is something she will regret her entire life: killing her then-boyfriend, Farid Mohammed, in 2015.

The Information Communication Technology (ICT) guru, who is now doubles as a lawyer, has been fighting for her freedom, arguing that she was a victim of circumstances.

Nevertheless, the Supreme Court has shut the doors, leaving her only option to leave prison through a presidential pardon or power of mercy, or if her imprisonment is commuted to life, her hopes of leaving prison are pegged on Members of Parliament enacting the long-waited life imprisonment law to determine the years she will spend behind bars as a life sentence prisoner.

Courts have found that prisoners should not serve their entire natural lives behind bars. However, MPs have been eating buttered buns and drinking tea while files that would grant prisoners a reprieve gather dust and cobwebs.

Her story before the Supreme Court, as told by her lawyers, Prof. Githu Muigai and Wambui Muigai, mirrored a life of abuse. At the same time, the senior lawyer and Wambui argued that the law was too rigid to accommodate women and girls who were ensnared by domestic violence.

 According to the former AG, the victims of battered syndrome(BWS) tend to have suffered too deeply, such that their excessive reactions tend to be tragic but not intentional.

“The law as it currently stands does not adequately reflect the psychological and emotional realities of victims trapped in cycles of violence. Battered Woman Syndrome (BWS) is not an abstract theory; it is a well-documented syndrome that demonstrates the devastating effects of sustained abuse on a person’s ability to assess threats and act in self-defense. For far too long, our courts have applied the rigid confines of traditional self-defence, disregarding the lived experiences of women like the petitioner.

Both the Court of Appeal and the Court of Appeal decreed that she has a heart full of malice, spite, callousness and hatred and which equally deserves to be punished by death.

Nevertheless, Prof Githu asserted that whenever BWS is raised, then the moral culpability of the accused should be measured on a lower scale, as the trauma of sustained abuse shapes them.

He asserted that the first witness in the case had told the court that the relationship between the two was not warm. At the same time, the court heard that the fourth witness had intimated that Kamande had opted to leave the country to go work in Lebanon after their bliss hit a dead end. In the

 After High Judge Lessit sentenced her to death, Ms. Kamande moved to the Court of Appeal hoping to prove that she had no intention to kill Mohammed. She explained that although the State had claimed that she had previously seen some letters the deceased had written to another lovebird, she had reconciled with him to the extent that she would cook for him.

The girl narrated that she stabbed him in self-defense, adding that there was proof that there was a struggle between the two as she too had injuries.

However, Court of Appeal judges Hannah Okwengu, Mohamed Warsame and Jamilla Mohammed declined to tilt the scales of justice in her favor.

“Upon scrutiny of the evidence adduced, we cannot but conclude, as did the learned Judge, that the appellant’s alleged defense of self-defense was unbelievable given the cogent and compelling evidence of the prosecution witnesses,” the judges ruled yesterday.

“In our view the nature of injuries suffered by the deceased and admittedly caused by the appellant is a clear testimony that the appellant intended to kill, hence the offence of murder was proved beyond any reasonable doubt in regards to malice aforethought.”

The judges also rejected her plea for a lenient sentence, being a first offender.

Her lawyers put a spirited argument that the State did not prove murder. According to the two, there was no postmortem examination to ascertain that he died out of inflicted internal injuries.

According to Githu, the High Court erred by relying on the evidence of Mohammed’s former landlord and his wife, who gave conflicting accounts of what happened.

He argued that it had not been proven that she took a knife from the kitchen, nor was it shown that she was the first to attack.

 The court heard that Kamande could have stabbed Mohammed from a lying position with him seated on top of her. “The stab wounds were random and not around one location in a calculated attempt to kill the deceased,” Githu argued adding that as there was blood all over the house, it was possible that when she got the deceased off her, she panicked, ran out to the bedroom and into other parts of the house spreading blood all over.

The senior lawyer argued that the trial court had shown bias against Kamande as before delivering the verdict, the judge had also ready concluded that she bore jealousy. According to Prof. Muigai, the court ignored testimony by prosecution witness three, who described her as a pleasant girl.

“The High Court’s contention that the appellant held a grudge due to discovering old love letters in his possession, as failing to take into account evidence that they had resolved the disagreement the day it occurred with the appellant cooking for the deceased and watching a movie together before retiring to sleep and the deceased communicating the resolution to prosecution witness one in chat messages obtained from his phone,” he continued.

The Director of Public Prosecution opposed the appeal. Through senior assistant DPP Hassan Abdi, he argued that Kamande was obsessed with the deceased, prone to extreme jealousy and possessive of the deceased.

He stated that it was not disputed that the deceased succumbed due to injuries caused by her.

According to Hassan, the 23 stab wounds inflicted upon the deceased were a clear indication of intent and malice.

“The said injuries were multiple and severe, done repeatedly, intending to cause grievous harm or death of the deceased,” he argued.

When it emerged that she had stabbed her boyfriend, Farid Mohammed, 25 times, some who were keen on the chilling story oozed anger, while others expressed disbelief that she was acting in self-defence.

However, others believed that her story of domestic abuse was not considered.

Amnesty International called for the commuting of the death sentence. The human rights group director Irungu Houghton observed, after Kamande was slapped with the death sentence, that the mode of punishment was retrogressive and cruel.

“We are concerned that Kenya continues to use this cruel, inhumane, and outdated mode of punishment. This sentence is a blow to Kenya’s progressive record in commuting death sentences to terms of imprisonment,” Mr Irungu said.

Female Members of Parliament also joined in calling for the removal of the death sentence from the law books, noting that Kamande had lost her life through punishment instead of rehabilitation.

Kamande was crowned winner of the Lang'ata Women Prison beauty pageant in 2016.