KITUO CHA SHERIA BLOG

SUCCESS STORY- MERU PRISON JUSTICE CENTRE

CLIENT’S NAME: JULIUS KOOME IGWETA

OFFENCE: MURDER- HCCR.NO: 72/2005

CONVICTING COURT: MERU HIGH COURT

DATE OF SENTENCE: 26/05/2006

K.C.A APPEAL NO.164/2011: CONSTITUTIONAL PETITION NO. 12 OF 2016.

CASE PREAMBLE:

Julius Koome Igweta was charged with the offence of Murder C/Sec203 as read with Sec 204 of the Penal Code. The particulars of the offence were that on 12^thday of August, 2005 at Giatune Sub- Location, Mpuri location in Meru Central killed Dorcas Kaguri. The trial court convicted and sentenced the accused to suffer death as the law provides. Aggrieved and dissatisfied by the decision of the trial court the appellant exercised his rights of appeal within 14 days by appealing to the Court of Appeal in Nyeri vide K.C.A.No 164/2011. Through a judgement that was delivered on 24^thJune 2016 the same was disallowed.

Having exhausted all appeal avenues the petitioner filed a constitutional petition under Article 50 (6) of the Constitution of Kenya 2010 seeking leave to move the court on matters of New and Compelling Evidence. This was barely two months after the dismissal of the appeal.

Among the issues raised by the petitioner were:

1. That the petitioner has suffered both physical and psychological torture for being deprived the right of life arbitrarily contrary to, or in breach of Article 26(1)(3) of the Constitution of Kenya.
2. That the law was not fully observed when convicting and sentencing the petitioner, which denied him access to Justice thus breached the provisions of Article 48 of the Constitution of Kenya
3. That the petitioner has new and compelling evidence which will be adduced before this court during the time of hearing of this application.
4. That the petitioner be allowed to recall both PW2 and PW4 to give their testimony as new and compelling evidence.
5. That the Mandatory Death Sentence meted to the petitioner was excessive, arbitrary and inhuman, and deprived the petitioner’s right to a fair trial contrary to Article 50(2) of the Constitution.

In the end the petition which was before Hon. Justice Said Chitembwe partly succeeded as follows:

• There was No New and Compelling Evidence to warrant having a retrial,
• That the death sentence meted out to the petitioner is set aside.
• The petitioner shall serve twenty (20) years imprisonment and that the sentence shall run from 10^th November, 2005 up to the date the sentence is completed in 2025.

The sentence expiry date being already defined; the appellant was unable to benefit from the Remission of sentence by the prison authority.

Paralegal and Human Right Officer Intervention

With the knowledge that the jurisdiction to adjudicate and determine the issue of remission of sentence falls within the sole purview of the Kenya Prison Service as per section 46(1) of the prisons Act (Cap 90 Laws of Kenya) which gives prison authorities the power to grant remission of sentences based on  good character and industry. Following his character and good conduct, the petitioner deserved remission to his sentence as per the above section. Since the judgment delivered on 1/10/2018  limited the prison authority from exercising this mandate as it defined the expiry date of the sentence as it stated that the sentence shall run from 10^thNovember,2005 up to the date the sentence is completed in 2025; the Human Rights Officer Mr.Joel Katorima, through the officer in-charge MeruG.k prison, took the initiative of writing to the Deputy Registrar Meru High Court seeking clarification in respect to the petition and advice on how to harmonize it with the provisions of the Prisons Act as stated above.

Conclusion

The indefatigable efforts of the Officer In-Charge Meru Main Prison- A.C.P. David W. Ndumu and the Human Rights Officer attracted the unbiased assistance of the office of the DeputyRegistrar, the office of the D.P.P, who in turn consulted the higher authorities involved and got a positive response in favor of the petitioner.

On12^th July 2019 a Production Order was issued by Meru High Court instructing the Officer In-Charge to produce the petitioner in question before Meru High Court. The petitioner with the basic knowledge of paralegalism explained himself to the learned judge,Hon.Said Chitembwe who delivered a judgement in favour of the petitioner as it  reads “The judgement which was delivered on 1/10/2018 is hereby reviewed. The appellant to serve twenty(20) years imprisonment from 10/11/2005 and the petitioner to be entitled to remission under the prison laws”. The matter is now a success story in that the judge rectified the apparent error and allowed scope for the prison authority to institute remission of sentence by undoing the definition of the expiry date of sentence from the judgment. As at now, the appellant is reintegrated back to the society having benefited from the remission of sentence.

Report Compiled by:

 Joel Katorima

Human Rights Officer-Meru Prison Justice Centre