The appellant appealed his conviction and sentence for injuring his wife, who he inherited according to customary practice after her husband died in 2002. On November 8, 2013, his wife attempted to pack clothes to visit her children in Nairobi. The appellant refused to let his wife travel and threatened to murder her. The appellant cut both of his wife’s arms using a panga (machete), but she managed to escape to her nephew’s home. The nephew saw the appellant armed with the panga and a knife before taking his aunt to the police station and later the hospital. The appellant was convicted of Grievous Harm Contrary to Section 234 of the Penal Code and sentenced to seven years imprisonment. He appealed, arguing that the trial court failed to consider that this was a mere domestic issue that could have been resolved by village elders. The appellant asked for a non-custodial sentence citing the fact he was an elderly man (78 years old). The High Court upheld the conviction and the sentence, noting, “The appellant’s actions amounted to violence against women. It is my view a gender-based violence which the court cannot condone or tolerate and let perpetrators of violence against women and girls go unpunished.” This case demonstrates the relationship between the criminal courts in Kenya and customary law.
Women and Justice: Court: High Court of Kenya at Siaya
Domestic Case Law
Nduta v. Republic High Court of Kenya at Siaya (2015)
Republic v. C.W. High Court of Kenya at Siaya (2016)
The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter. The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity. A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased. The defendant was also injured by the deceased during the altercation. The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one. Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.” Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children. The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force. The High Court handed down a three-year non-custodial sentence. This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.