Why Some Judges Break Their Pens After Handing Down a Death Sentence

When Nyeri High Court Judge Kizito Magare sentenced 35-year-old Nicholas Macharia to death on Thursday, February 19, the courtroom was silent.

But what happened after the judge pronounced the sentence sparked a national debate: the judge deliberately snapped his pen after reading the sentence.

The small but telling moment, recorded by cameras in a packed courtroom, has raised many questions across the country. Is it a requirement by law? Is it an emotional response? Or is it something more profound about the value of the death sentence in the Kenyan judicial system?

The answer to the question is not in any legal texts but in the history of courtroom rituals.

The snapping of the pen is a tradition, not a requirement, that dates back centuries.

A Rare Gesture in Kenyan Courts

Immediately after pronouncing the sentence, the judge broke his pen.

The action is not provided for under Kenyan law. Lawyer Erastus Orina explained that the practice is ceremonial and symbolic.

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“It does not exist in our statutes or criminal procedure. It is purely ceremonial and symbolic, meant to signify that the pen which has written the ultimate sentence should not be used again for such a purpose,” he said.

Legal historians note a ritual in medieval and early modern European trial courts, especially in Germany and France, in which a judge would break a quill after pronouncing a death sentence.

The exact form of the ritual differed, but the significance was clear: it was a declaration of the finality, significance, and weight of the judgment, and the end of the trial court’s jurisdiction on the case.

Some rituals included a declaration that matched the significance and finality of the judgment.

Today, there are written decisions, digital records, and the ladder of appeals, but there are rare moments when a symbolic act once associated with capital punishment recurs, reminding us of the gravity of the sentence.

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The Case That Led to the Ultimate Penalty

Macharia was convicted for the murder of seven-year-old Tamara Blessing Kabura, a Grade 1 pupil who disappeared from Nyeri Town’s open-air market on May 24 last year.

According to court findings, the child encountered the accused, a man known to her family, at about 6 pm and followed him to his residence in Witemere.

Evidence presented in court showed that the minor was sexually assaulted, killed, and buried beneath the accused’s bed in an attempt to conceal the crime.

CCTV footage from a nearby spare parts shop later placed Macharia with the child shortly before her disappearance.

He was arrested on May 26 and led investigators to the house where the body was recovered.

A postmortem at Nyeri County Referral Hospital confirmed the child suffered multiple injuries and died after assault and suffocation.

Prosecutors tabled forensic analysis from the Government Chemist, cybercrime data, clothing recovered from the scene, photographs, and a confession statement.

While delivering the judgment, Justice Magare said the prosecution had presented overwhelming evidence.

He also considered a victim impact statement from the child’s mother, Susan Wanjiru, who rejected the accused’s apology and described the emotional devastation inflicted on her family and community.

Macharia was charged with murder contrary to Section 203 as read with Section 204 of the Penal Code.

Although he pleaded guilty, the court held that this did not mitigate the gravity of the offence.

“Though you pleaded guilty, that plea of guilty does not by itself remove the seriousness of the sentence,” the judge stated.

“It is a good thing to save judicial time, but the mere fact that time was saved in the hearing of this matter does not shorten the sentence,” Magare ruled.

Defence lawyer Mahugu Mbarire urged the court to consider rehabilitation, arguing that the accused had no prior capital offence record and was capable of reform.

“Essentially, the accused is not beyond reform and therefore the death sentence is not merited,” counsel submitted.

The court disagreed. “In view of the circumstances and having considered the law and the objectives of sentencing, the ultimate penalty remains available and applicable,” Justice Magare ruled before declaring: “Therefore, accordingly, I find that you are hereby sentenced to death.”

Death Penalty in Kenya: Law and Reality

Kenya retains the death penalty in law for murder and other capital offences.

The Prisons Act provides that a person sentenced to death, “shall be hanged by the neck until he is dead,” and a death warrant is transmitted to the competent authority after a 30-day stay of execution.

However, executions have not been carried out in Kenya for decades.

Following the 2017 Supreme Court decision in the Muruatetu case, the death sentence is no longer mandatory for murder; courts now exercise discretion based on the circumstances of each case.

Justice Magare emphasised the objectives of sentencing, stating: “The sentence must reflect the offence, denounce the conduct in the strongest terms, protect society and serve as a deterrent measure.”

Macharia has 14 days to appeal, and death sentences in Kenya are frequently reviewed or later commuted to life imprisonment.

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