Kenya: Court Dilemma in Handling Domestic Violence Cases

Murder cases prompted by domestic violence continue to flood Kenyan courts. This is despite insistence by judges and magistrates that harsh sentences serve as a warning to potential offenders.

However, judges sympathise with the accused in some instances. Daniel Onyondi Moi is on death row for killing his girlfriend, Regina Kiinya.

Justice Teresia Matheka said courts have a duty to send a strong message when dealing with such cases.

"The sanctity of love and the family must be protected. There are better ways of resolving domestic disputes. If it is not tolerable, just walk away," the judge said in 2019.

"Our society must not tolerate violence. We should not tolerate the killing of girlfriends, wives, boyfriends and husbands."

Last month, Justice Roselyn Aburili handed a one-day non-custodial sentence to Truphena Ndonga Aswani for killing her husband, James Oyengo Obochi.

The court said the woman was constantly beaten by her husband.

Threat of death

Obochi had demanded the title deed for land he wanted to sell but Aswani feared his recklessness would render the family homeless.

"He was an irresponsible, violent and brutal man who did not treat the accused with dignity," Justice Aburili said.

She added that the threat of death was eminent and the only way Aswani could save her life was by "immobilising" her husband, who had a panga.

In another case, Justice James Makau gave Collet Tabitha Wafula a three-year non-custodial sentence when he found her guilty of killing her husband Lukas Oduor Abok at their home in Uholo, Siaya county on May 7, 2016.

According to the prosecution, Abok arrived home drunk and started accusing her of infidelity.

The woman picked a kitchen knife and stabbed him when the argument turned violent. She then called for help, remained at the scene and confessed to the killing when police arrived.

Acting in self-defence

The court said the woman - a mother of three then aged 24 - killed her husband "in the heat of the moment".

The judge was told that she got angry when Abok accused her of infidelity when it was he who was unfaithful.

"The fight was provoked by Abok and the accused was acting in self-defence but used excessive force," the judge said.

The court said the woman needs counselling.

"I find that she needs community-based rehabilitation. This will help her raise the children," the judge said.

In July last year, Justice Reuben Nyakundi sentenced Mr Riziki Karisa to 35 years in prison for killing his wife Kadzo Charo in Kasanga village, Malindi, on December 3, 2016.

On the fateful day, Karisa asked his family to cultivate land as he went to tap wine.

From one of his children's testimony, Charo did not go to the farm because she was busy with house chores. When Karisa found that she "defied" his instructions, he picked a knife and stabbed her. The man then turned the knife on himself but neighbours came to his rescue.

Brutal killing

Justice Nyakundi described the killing as callous and brutal.

"The life of a mother was unnecessarily and senselessly lost. The murder was committed as the children watched, which may affect them psychologically for the rest of their lives," he said.

Equally sentenced to 35 years in jail was Johana Munyau, who was found guilty of killing his wife Rose Wairimu for not having a child. Munyau committed the offence in Nairobi on April 7, 2015.

"Not giving birth, a fact that was beyond her control, was no reason to lose life," Justice James Wakiaga said.

The judge said whereas Munyau had an unhealthy past - he was brought up in a children's home, never saw his father while his mother killed herself - which might have contributed to his character, there was no indication that he sought help.

"This court has come to the conclusion that a sentence of 35 years in jail will send adequate signal to any person, including the convict, that the right to family, which is the natural unit of society and the necessary basis of social order was not placed in the Constitution for love and affection. It is a right that shall be protected at all costs," the judge said.

Justice Wakiaga added that the court was aware of the rise in number of deaths arising from domestic violence or in family settings, and that the sentence should send a message that the home is a city of refuge and not a place for one to be on guard.

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