Kenya aristocrat sentence deferred

May 12, 2009 12:00 am

, NAIROBI, Kenya, May 12 – The High Court has deferred the sentencing of Kenyan aristocrat Tom Cholmondeley to next Thursday after an hour and a half of final submissions by the State and the defence.

Justice Muga Apondi told an expectant courtroom that Cholmondeley will remain in custody until May 14.

Director of Public Prosecutions Keriako Tobiko told the court in his final submissions that Mr Cholmondeley “has no record of previous conviction and should be treated as a first-time offender.”

Mr Cholmondeley was found guilty of manslaughter for the killing of stonemason Robert Njoya last Thursday.

The manslaughter charge in Kenya carries a maximum sentence of life imprisonment but no minimum.

Mr Tobiko urged the court to consider the Principle of Proportionality in sentencing: “(that) the sentence imposed should reflect the seriousness of the offence.”

He also invoked the principle of ‘Equality before the Law’, “that sentencing decisions should treat offenders equally, irrespective of their wealth, their race, their colour, sex, employment or family status.”

This bore direct reference to the aristocratic lineage of Mr Cholmondeley who hails from Kenya’s most prominent early settler, great-grandfather, Baron Delamere.

It was feared that that a colonial-era two-speed Judiciary was still in force in the country and would not mete out as harsh a verdict on the prominent white Kenyan as on an ordinary black man.

Mr Cholmondeley’s lead lawyer Fred Ojiambo differed with the State’s submissions on the principles guiding the sentencing.

Mr Ojiambo said: “The principle goes beyond just the commensurate …and addresses the justice of all involved. .. in computing the sentence your lordship would also have to consider the effect of such sentence to the accused person, to the family of the deceased and to the society in general.”

“Consider the conduct of the accused person prior and after the offence for which he has been convicted,” Mr Ojiambo continued. “Your Lordship pointed out that this was not a case of callousness. The events which culminated in these proceedings happened when the accused and his companion were walking in buffalo-infested bush.”

Trial Judge Muga Apondi last week reduced the initial murder charge to manslaughter, citing lack of sufficient circumstantial evidence.

 Speaking to journalist’s soon after the adjournment was announced, Mr Ojimabo said: “We have done our part and it is now the discretion of the court to give the sentence, and really we knew it would not happen today. We were not ready for the sentence today.

“The court will have to take into account all those matters and all those factors to which we referred and then we see what happens. I am afraid I don’t want to guess it is a very difficult thing to do,” he added.

The Eton-educated aristocrat was accused of murdering Robert Njoya, a suspected poacher, in May 2006 but has only admitted to shooting dogs on his 55,000-acre Rift Valley ranch.

Njoya’s widow Sarah said she is determined to get justice over the murder of her husband.

“I am not tired coming to the courts, I am determined to await justice however long it takes. They have now said it is on Thursday, I will wait for that and I will be coming here to hear the sentence. I expect justice to be done,” she said.

However Judge Apondi said: "It was the accused who shot the deceased," but added that there was no "malice aforethought."

Lay assessors had found Mr Cholmondeley not guilty in March, arguing that evidence provided by the prosecution was inconclusive, and many observers had expected Cholmondeley to be acquitted.

Justice Apondi rejected the views of the assessors and cast doubt or dismissed some witness accounts.

Mr Cholmondeley had previously gotten off on murder charges after allegedly killing a Game park ranger in 2005 where he argued legitimate self-defence.

The first case was withdrawn by the State, fuelling condemnation.


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