Lawyers reacted to the decision by High Court judge Grace Nzioka to sentence Joseph Irungu alias Jowie to death after finding him guilty of the 2018 murder of businesswoman Monica Kimani.

In the ruling on Wednesday, March 13, Justice Nzioka rule that the murder of Monica Kimani was “intentional.”

“It was not a defensive act; it was not out of provocation. It was planned, intended, and executed,” ruled Justice Nzioka.

“Based on what I have said, I have ordered that the first accused before this court, Joseph Kuria Irungu alias Jowie, shall suffer death as provided for the offence of murder under section 204 of the penal code of Kenya. That is the order of the court.”

Nzioka affirmed that the decision was firmly based on the evidence adduced in the court, nature of the offence and strongly pointing out the unique circumstances of each case.

Dr Miguna Miguna Responds

However, her ruling has been opposed by a section of lawyers who argue that the ‘death sentence’ was unconstitutional.

In a statement, lawyer Dr Miguna Miguna opposed the death sentence but insisted that Jowie should be punished for his action.

He argued that the ruling violates the Constitution adding that a judge shouldn’t have the power to order for execution of anybody.

“I don’t like Joseph Kuria Irungu alias Jowie. I believe that he is a cold-blooded murderer; a barbarian who should be severely punished for his crimes. However, I oppose the death penalty,” he said.

“A human being, including a judge, shouldn’t have the power to order the killing of anyone. It also violates the Constitution, which banned the death penalty.”

Speaking to The Kenya Times, Lawyer Mwaura Muroki also stated that the death penalty is unconstitutional.

According to Muroki, the sentences are automatically commuted to life by the seating president.

“That is the reason why Kenya is called an abolitionist state. It is yet to abolish the penalty but despite imposing it, there has been no execution for several decades. None is actually carried out, it is turned by the presidents into life sentences,” explained Muroki.

Can Jowie be pardoned? -Lawyer Muroki Explains

The lawyer explained that individuals sentenced to life can equally be pardoned although this is not guaranteed and takes time.

He also emphasized that the final decision to pardon such prisoners lies with the presidents and depends on their behavior in jail.

“What happens is that it is a process, from death sentence to maybe life imprisonment then afterwards their name can be recommended to the president through the Power of Mercy Committee. Occasionally we have seen the president pardon various offenders especially during public holidays,” Mwaura said.

“It basically goes down to the conduct of the offender while incarcerated. If the person has shown significant progress and reforms, then the recommendation can be accepted but the final lies with the president,” he added.

Death Penalty Provisions

The death penalty is imposed upon offenders convicted of murder, treason, administration of unlawful oaths to commit capital offences, capital robbery or attempted capital robbery.

According to section 69 of the Prisons Act, the mode of administering the death penalty recognized by law is by hanging.

Children in conflict with the law cannot be subjected to the death penalty.

Further, the Criminal Procedure Code prohibits the imposition of the death penalty upon offenders convicted of an offence punishable by death, but which was committed when the offender was below the age of 18 years.

Also Read: Jowie Irungu Handed Death Sentence

Instead, such an offender is to be imprisoned at the President’s pleasure.

In such a case, the court is required to forward to the President notes of the evidence adduced during trial as well as a signed report expressing his/her observations or recommendations.

Pregnant women are also exempted from the death penalty and when convicted of offences punishable by death, they are to be sentenced to life imprisonment instead.

Kenya has not executed anyone since 1987 when Hezekiah Ochuka was convicted of treason and hanged for participating in an attempted coup.

President Kibaki & Uhuru Changes

Former Presidents Mwai Kibaki in 2009 and Uhuru Kenyatta in 2016 changed the death sentence to life imprisonment.

In 2009, Kibaki commuted the sentences of more than 4,000 death prisoners to life while Uhuru did the same to 2,472 prisoners in 2016.

Everyone who had been given a death sentence was to receive a life sentence, per their order.

However, this meant that their life in prison system is until death.

Unlike other prisoners who can have their sentences reduced based on good behavior and work performance, those sentenced to death have little chance of early release.

Also Read: Why Monica Kimani Family Asked Court to Slap Jowie with Death Penalty

Court Declares Death Penalty Unconstitutional

In December 2017, a landmark ruling by the Supreme Court declared the mandatory nature of the death penalty unconstitutional.

The Court overturned Section 204 of Kenya’s Penal Code, which required that judges impose death sentences upon conviction of murder or armed robbery. 

This led to the creation of the Taskforce on the Review of the Mandatory Death Sentence.

In 2010, Kenya’s Court of Appeal ruled in favor of death row prisoner Geoffrey Ngotho Mutiso, who had challenged the mandatory death sentence provision on the grounds that it denied judges the opportunity to consider mitigating circumstances that could spare a defendant’s life.