SUPREME COURT INTERVIEWS

Judge on the spot for freeing murder suspects to be cleansed

Justice Sergon says he is dynamic and that will not be a trend

In Summary

• Considering the number of years the suspect had already served behind bars, he said, he opted to release the person so that the parties can reconcile.

Judge Joseph Sergon /JACK OWUOR
Judge Joseph Sergon /JACK OWUOR

High Court judge Joseph Sergon was Wednesday put to task to explain why he set free suspects in murder cases to undergo traditional cleansing when the law on reconciliation does not apply to felonies.

Judge Sergon said one of the cases was initially that of murder but was reduced by the state to manslaughter. He convicted the suspect and what he was left was for the sentence to be meted out.

“Where the offence of murder by virtue of an agreement between the state and suspects agreed to have it reduced to manslaughter, so having convicted them of manslaughter what kicks in now is the sentence. What is the appropriate sentence,” he said.

He asked for reports from the provincial administration, the victim’s family, the family of the accused person and the community to enable him to reach a decision.

And from the report in the case, the parties said they had reconciled and even prepared Kipsigis customary cleansing ceremony to compensate the bereaved family. 

Considering the number of years the suspect had already served behind bars, he said, he opted to release the person so that the parties can reconcile.

The question by commissioner David Majanja arose out of a complaint filed against justice Sergon by Kenya Human Rights Commission and ICJ.

Commissioner Macharia Njeru also noted that the judge had developed a pattern of releasing murder suspects on grounds that they go through traditional customary cleansing which has the potential of creating anarchy.

The judge said he had looked at the fact that the people involved were held in custody for a very long time and given that the community wanted the people to be released back to them, he opted to release them to create community cohesion.

Sergon said he is dynamic and that will not be a trend if he is given the opportunity to be a Supreme Court judge.

The issue was once again revisited after commissioner Everlyne Olwande asked the judge why he did not consider the views of the victims in the three cases that were filed as complaints against him.

He said ordered for and received the victims' assessment report.

Sergon said his judicial philosophy is opening access to justice to marginalised communities, children and women.

Given the opportunity, he said he will learn the ropes quickly on how to work in a collegial court.

On the issue of corruption in the Supreme Court, Justice Sergon said he will hold discussions with his colleagues to come up with communication mechanisms.

“I would wish to persuade the court to look at reports on corruption and then ask ourselves if it is a question of real corruption or perception,” he said.

The judge successfully defended his PhD thesis on February 26.

He believes studying for the PhD has enriched his knowledge and research skills

Sergon is serving in the High Court and was recently appointed a member of the committee on alternative justice.

While in private practice, justice Sergon represented the Ogiek community who were being evicted from Mau forest.

Although some were encroaching into the forest and were evicted, they went to African court and their issue was resolved.

He participates in community work by paying school fees for the underprivileged and has put up a school forest. 

Justice Sergon also feeds elderly people in his community weekly. 

Meanwhile, lawyer Alice Yano urged the commissioners to ensure fair translation of the standards the Constitution, including gender and diversity considerations in picking the nominee. 

If given a chance to serve on the Supreme Court, she said she will be able to learn the ropes in a week and work hard to deliver justice to Kenyans.

She assured the JSC that she is able and suitable for the position given her wealth of experience appearing before lower courts and interacting with judges. She has never taken a case to the Supreme Court.