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Inside Jowie’s legal battle with the state

Convicted murderer Joseph Kuria Irungu alias Jowie has embarked on another legal battle with the state, this time challenging the constitutionality of the death penalty in cases where people are charged and convicted of murder.

This is the second legal battle Jowie has launched against the state in a bid to secure early freedom, following another that seeks to overturn the death sentence imposed on him by the High Court last month.

Jowie has returned to the High Court with a constitutional petition seeking to strike down Section 379(4) of the Criminal Procedure Code, arguing that the section is unconstitutional, null and void insofar as it denies persons sentenced to death the right to bail pending appeal.

Through his lawyer Andrew of Muge Law Advocates, Jowie argues that Section 379(4) of the Criminal Procedure Code is discriminatory and violates the right to human dignity of a person sentenced to death and is therefore contrary to Articles 27 and 28 of the Constitution.

“The petitioner seeks a declaration that the death penalty by its nature and in the manner, process and manner in which it is or may be administered constitutes torture, cruel, inhuman and/or degrading form of punishment prohibited by Article 25 of the Constitution,” Jowie said.

Jowie also argues that the death penalty imposed on him for the murder of businesswoman Monica Kimani violates his right to life protected by Article 26(1) of the Constitution.

He also wants a declaration that all other laws providing for the death penalty in Kenya are inconsistent with and violate Articles 25 and 26 of the Constitution to the extent that they permit or provide for the imposition of the death penalty.

“The petitioner prays for a declaration that the death sentence imposed on him on 13 March 2024 violates my non-derogable right to be free from torture and cruel, inhuman or degrading treatment or punishment,” Jowie said.

Jowie was sent to the gallows on 13 March this year after being found guilty of killing Ms Kimani in her Limuria Garden apartment in Nairobi.

Judge Grace Nzioka, after analysing the evidence in the case, found that the convict was at the centre of the murder and ruled that he deserved the death penalty.

The judge found that the convict murdered Ms Kimani in cold blood and left her tied up in a bathtub.

Evidence such as the burning of the Kanzu, which the convict had put on on the fateful day in an attempt to conceal evidence, was also taken into account.

The court also relied on the prosecution’s evidence that the deceased did not provoke the convict to justify the attack that left her dead.

Jowie’s pre-sentence report also conspired against him, describing him as a man of dual personality, leaving the court with limited options in sentencing him to prison.

The lead investigator – Chief Inspector Maxwell Otieno – had described Jowie as a dangerous person because he was allegedly involved in a fight after being released on bail.

These factors led the court to sentence Jowie to death.

But now the convict is not only seeking the repeal of criminal laws that prescribe the death penalty for those convicted of murder, but has also asked for compensation for an alleged violation of his constitutional rights.

Jowie’s main argument, and the basis of his legal battle with the state, is that the section of the law he is challenging prevents those sentenced to death from seeking bail pending appeal.

“This is unconscionable when the appeal has an overwhelming chance of success, as is the standard for bail pending appeal for all other convictions and sentences, including life imprisonment,” his lawyer said.

His lawyers argue that the constitutional petition filed at the High Court in Nairobi challenges the constitutionality of the archaic death penalty as a form of punishment in a modern society such as Kenya aspires to be.

In addition to this constitutional petition, Jowie has also filed a notice of intention to appeal his conviction and death sentence.

In his notice of appeal to the Court of Appeal, also filed by his lawyer Andrew Muge, Jowie said he was aggrieved by both the conviction and the sentence imposed by the High Court.

“Be it known that Joseph Kuria Irungu alias Jowie has appealed to the Court of Appeal against the decisions of Justice Nzioka delivered in open court at Milimani, Nairobi on the 9th day of February 2024 and in her written judgment dated the 9th day of February 2024, convicting the appellant of murder and sentencing him to death on the 13th day of March 2024. The appeal is against the conviction and sentence,” reads part of the notice submitted to the Court of Appeal.

Jowie is now hoping that one of these two legal battles will win him his freedom and save him from the death penalty.