Kamiti ordered to allow murder convict to finish master's course

 

Erastus Ngura Odhiambo at the Milimani Law Courts during the hearing of a case in which he was accused of murdering Linda Wanjiku Irungu, a lawyer, in Buruburu Estate in 2014. He was jailed for 20 years. [File, Standard]

Erastus Ngura Odhiambo has been in jail since 2018, serving a 20-year sentence for murder of a woman who claimed to have been his wife.

Ngura, who killed Linda Wanjiku Irungu in Buru Buru in 2014, opted to spend his time at the Kamiti Maximum Security Prison sharpening his mind. He enrolled for a master’s degree in May, 2019.

Since his freedom is limited, online classes offered by the Mt Kenya University were helpful. He graduated in June, 2022. Ngura then decided to pursue another master’s degree in project management.

Ngura, a common figure in the corridors of justice, told the court that he had authored various journals and articles and had been training other convicts in entrepreneurship.

This was when the authorities allowed him to access a laptop and the Internet. On February 15, 2023, the prison handed him a laptop and its bag, mouse, headphones and a WiFi router.

Nevertheless, his thirst for education was cut short after he was transferred to the Kamiti Medium Security Prison on February 9, last year. He told the court that his request for similar facilitation was denied.

According to him, the officer in charge of the facility started disciplinary action against him.

Bill of Rights

He sued.  

His battle with the State now sets a precedent that prisoners who want to further their formal education  should be allowed to do so without restrictions.

Justice Jairus Ngaah found that although imprisonment means restricting certain rights, the right to education cannot be limited or withdrawn.

“It follows that the applicant cannot be denied the right to education, or any other right in the Bill of Rights, for that matter, merely because he is imprisoned, since article 51(1) is clear that a person who, like the applicant, is imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights unless, of course, it can be demonstrated the applicant’s right to education is incompatible with the fact that he is imprisoned,” he ruled.

Indeed, Section 18 of the Persons Deprived of Liberty Act requires prisons to ensure convicts have access to educational opportunities and reading material.

It also provides that children should be offered the same education as those in schools outside.

Over the years, the number of inmates sitting the Kenya Certificate of Primary Education (KCPE) and Kenya Certificate of Secondary Education (KCSE) examinations and graduating from colleges and universities has been increasing. Data reveals that between 2004 and 2005, 120 inmates were KCPE candidates while 75 sat KCSE examination, and 40 graduated with diploma certificates from various colleges.

However, there were no degree graduates between 2004 and 2010. Between 2012-2013, there were 170 graduates, including two from universities.

Rehabilitation path

In his landmark case, Ngura told the court that he had served seven years of his sentence and that he viewed his education as a “rehabilitation path”.

The convict argued that he had never been involved in a disciplinary proceeding while behind bars, and the facility was intimidating him from pursuing his quest.

He produced a copy of a charge sheet showing that on June 25, 2023, he was allegedly caught with an Oppo phone charger and a cable. However, he claimed that this was not the case.

He said prison authorities initiated another disciplinary proceeding against him in months.

The court heard that in both disciplinary proceedings instituted on June 26 and December 13 last year, he was never given the record of the proceedings, the charge sheets and the statements, which ordinarily are vital components of such proceedings.

Ngura told the court that he risked losing Sh63,000 tuition fees.

The person in charge of Kamiti Medium and his deputy never responded to the case despite being served.

In his ruling, Justice Ngaah observed that the officers were aware of the case as they facilitated the prisoner to appear in court.

The judge said Ngura had proved his intimidation claim as he was transferred to Kitui Main Prison from Kamiti despite the officers knowing he had a court case at the Milimani Law Courts.

It took a court order to have him transferred back.

“In the absence of any reason for this transfer, it can only be assumed, as the applicant has suggested, that the respondents were out to intimidate him not only from pursuing his post-graduate degree program but also to stop the applicant from agitating for his right to education in this suit,” said Justice Ngaah.

He said that the right to education was not a favour but a right.

“When Kamiti main prison administration approved the applicant’s enrolment of educational courses and provided him with such infrastructure and tools as were necessary for him to pursue the courses he registered for, it was not doing anything out of the ordinary; neither was it extending to the applicant unwarranted favour. The prison authority was simply complying with the law to which it is bound and from which it cannot resile,” he said.

He ruled the prison’s decision was illegal and unconstitutional. The High Court gave the prison seven days to offer him technology and an enabling environment to study. He also barred the prison authorities from interfering with his studies.

The court also quashed the disciplinary proceedings.

Ngura was jailed in July, 2018, for murdering 27-year-old lawyer. During the trial, Ngura’s marriage to Wanjku was disputed.

The prosecution claimed he and Wanjiku were married and had a child. Ngura said he had paid dowry, but Wanjiku’s family maintained that the two were just friends.

Ngura pulled the woman out of her vehicle at the Waihura Court, leaving the car to roll towards the gate. A quarrel ensued and Ngura shot her.

After his conviction by Justice Stella Mutuku, Ngura lodged an appeal. He argued that there was insufficient evidence to support the charges. He claimed that evidence from 13 witnesses was contradictory and could not be corroborated. Odhiambo also said no bullet was produced in court.

Litigious convict

But justices William Ouko (now a Supreme Court judge), Wanjiru Karanja and Fatuma Sichale dismissed the case after finding that after shooting Wanjiku, he continued kicking her. They observed that he ought to have been slapped with a harsher sentence.

“The appellant appears to be part of a growing number of young persons who enjoy affluence and think that human life is useless. The deceased who was not armed was in her motor vehicle. She was pulled out of her moving car and shot at close range. This was a cold-blood murder,” they ruled. He filed another case before High Court judge Pauline Nyamweya, arguing he was not allowed to plead for provocation or manslaughter. Justice Nyameya, now a Court of Appeal judge, declined to hear the case on April 26, last year, and instead sent it to the criminal division.

Ngura has been involved in several cases on prisoner rights since his conviction. This year, he sued the government and mobile service providers, arguing that SIM cards should not be re-sold after being dormant.

The convict stated that a mobile number is unique to each person, just like one’s ID card.

Conjugal rights

“My registered phone number was registered in many other institutions, including banks, social organizations, Kenya Revenue Authority, Insurance, and several others and whose update and sensitive information are posted to that number, which is in the hands of a third party, thus breaching the right to privacy and protection of my data,” argued Ngura.

“When one is convicted, with the result being a custodial sentence, he or she automatically becomes digitally dead as Kenya Prisons Service do not allow prisoners to possess personal phones or digital devices within the prisons.”

In another case, his wife Rhoda Ogembo is seeking orders to allow her to visit him for conjugal rights. She sued the Attorney General, arguing that although her husband was jailed, he retains all his other rights, including conjugal rights and human dignity.

Ogembo also says he was still the father of their children. “Petitioners being teenage girls have lost their self-esteem being girls as they lack a father figure in their most wanting time of transition into womanhood and thus adversely psychologically wounded,” she says.