Bid to introduce fines for killers and robbers rejected by court

A High Court in Nairobi has thrown out a case filed by murderers to have killers, robbers or gangs who are convicted for murder or violently stealing paying fines.

Justice Chacha Mwita in his judgment Friday, said the Penal Code is neither discriminatory nor excessive for requiring anyone who has been found guilty of murder or robbery with violence to serve a jail sentence without an option of a fine.

According to him, the two capital offences are the vilest acts that can be committed against a human being. He said that anyone caught by the long hand of the law should be punished as retribution to the victims.

He also said that the culprits need to be rehabilitated, something which cannot be done if they are released after paying a fine and that  there was no evidence to show that those jailed for serious crimes were discriminated against others who are allowed to pay fines to avoid jail.

“Sentencing is the duty of the court and therefore has an option of challenging a conviction or a sentence on appeal. The petition is hereby dismissed with no orders as to cost,” said Justice Mwita.

 Erastus Ngula and Paul Odhiambo, both convicted on murder, had asked the court to find that it is unfair and unconstitutional for a person found guilty of murder or robbery with violence not to be accorded an opportunity to pay for their sins using money.

Under current law, Section 24 of the Penal Code provides that for capital offences, a person may be sentenced to death and may serve a varying number of years depending on, among other things, mitigating factors and circumstances under which a crime was committed.

However, Section 26 (3) (1) bars substitution of a fine where minimum sentence is provided.

The shortest capital offence sentence in Kenya’s records so far is of a woman who was jailed for one day after the court found that despite the state had proved her husband in a quarrel.

She had endured an irresponsible, violent and brutal human being who did not treat her with any dignity or respect at all.

Other options for punishment in minor offences, imprisonment or community service order, detention, fine, forfeiture, compensation, keep peace and be of good behavior.

The two argue that since the Supreme Court vacated mandatory minimum sentence for murder cases, then those convicted for such crimes should be eligible to pay fines.

In addition, the two believe that a fine could achieve a similar outcome in punishing a crime such as transformation, and restoration asserting that most offenders parents and breadwinners in their family.

They claimed: “Imposing custodial sentences to offenders without substitution of a fine option is a clear contravention of this provision as it disintegrates most families without giving them alternatives.”

Ngura has been in jail for  six years having been sentenced to 20 years imprisonment. 

Odhiambo, on the other hand, was convicted in 2018 for a period of 20 years. for the murder of Linda Wanjiku Irungu, a 27-year-old lawyer who was claimed to be his wife. The crime was committed at Waihura Court in Buru Buru Phase 5 estate, Nairobi.

The prosecution told the court that Odhiambo and Wanjiku were married and had a child. Odhiambo said he had paid a dowry, but Wanjiku's family maintained that the two were just friends.

He appealed, but Justices William Ouko (now a Supreme Court judge), Wanjiru Karanja, and Fatuma Sichale dismissed the case after finding that after shooting Wanjiku, he continued kicking her.