[2023] KEHC 26994 (KLR)
The court found that while the original sentencing judge considered the Probation Officer’s Social Inquiry Report and the Petitioner’s mitigation, the period the Petitioner spent in custody prior to sentencing was not factored into the sentence as required by Section 333(2) of the Criminal Procedure Code. The...
Source-derived case information.
- Citation
- [2023] KEHC 26994 (KLR)
- Parties
- Applicant: Benard Kiprotich Korir; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E005 of 2023
- Procedural Posture
- Criminal Petition / Sentencing Review Ruling
- Outcome
- sentence varied
- Judges
- JK Sergon
- Legal Topics
- Sentencing Review, Manslaughter, Custodial Sentence, Plea Agreement, Mitigation, Time Served Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Kiprotich Korir
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Sentencing Review Ruling
Legal Issues
- 1 Whether the sentence imposed on the Petitioner was manifestly harsh and excessive.
- 2 Whether the period served in custody prior to sentencing was properly considered under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that while the original sentencing judge considered the Probation Officer’s Social Inquiry Report and the Petitioner’s mitigation, the period the Petitioner spent in custody prior to sentencing was not factored into the sentence as required by Section 333(2) of the Criminal Procedure Code. The Petitioner was held in custody for approximately one year before being released on bond. The court held that this period must be deducted from the total sentence imposed. Consequently, the court set aside the original sentence of 20 years imprisonment and substituted it with a sentence of 19 years, effective from the date of the original sentence.
Court Disposition
sentence varied
Orders
- The sentence of 20 years imprisonment is set aside.
- The Petitioner is sentenced to 19 years imprisonment, to run from 16th December, 2022.
Full Case Text
Judgment text and source record
25 paragraphs
Korir v Republic (Criminal Petition E005 of 2023) [2023] KEHC 26994 (KLR) (13 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26994 (KLR)
Republic of Kenya
In the High Court at Kericho
Criminal Petition E005 of 2023
JK Sergon, J
December 13, 2023
Between
Benard Kiprotich Korir
Petitioner
and
Republic
Respondent
Ruling
1. Benard Kiprotich Korir, the Petitioner herein filed the instant Petition pursuant to the Provisions of Articles 1 (1) (3), 2 (4), 19 (3), 22 (1), 25, 26 (1), 27 (1), 50 (2) (O), 159 and 165 (3)6 of the Constitution whereof he sought for sentencing review. Mr. Musyoki, Learned Senior Assistant Director of Public Prosecutions opposed the Petition stating that the same is premature and that the Petitioner does not deserve a review of his sentence.
2. I have considered the Petition plus the rival arguments put forward by both sides. The background of the Petition appear to be straight forward. The Petitioner and 3 others were charged with the information of Murder.
3. The particulars of the offence are that on the 11th day of December, 2020, at Koisoet Village in Kebeneti Location in Kipkelion sub-County, the quartet murdered James Kipkorir Langat.
4. Pursuant to a Plea Agreement entered between the Petitioner and the ODPP, the Petitioner pleaded guilty to the lesser charge of Manslaughter and was subsequently convicted and sentence to serve 20 years imprisonment.
5. The Petitioner’s Co-Accuseds Namely: Rachael Chemutai Langat, Joshua Kipchirchir Korir and Ezra Kiplangat Korir underwent trial and were acquitted of the information of Murder on 21st September, 2023.
6. The Petitioner is now before this Court seeking for re-sentencing arguing that the sentence of 20 years imposed by this court to be manifestly harsh and excessive. He urged this Court to reduce the sentence. He submitted in mitigation that he is the sole bread winner with needy and elderly parents.
7. It is not in dispute that the window given to this Court is review its decision on sentence is limited. The Court is allowed to do a re-sentencing if it becomes apparent that the period the Petitioner served in custody was not factored in before pronouncing the sentence pursuant to the Provisions of Section 333 (2) of the Penal Code. The record shows that Hon. Lady Justice Ongeri before meting out the sentence considered the following factors:-First: the Probation Officer’s Social Inquiry Report detailing the social background of the Petitioner.Secondly: the mitigating factors plus the fact that the Accused was remorseful and pleaded guilty to the lesser charge of manslaughter.
8. It is apparent that the Learned Judge while sentencing the Petitioner did not consider the period the Accused served in Custody. The record shows that the Petitioner was held in Custody from 14th December, 2020- 2021 and was released on bond on 10th December, 2021. Under Section 333(2) of the Criminal Procedure Code, this Court is required to take into account the period served in custody and revise the Order on sentence.
9. I hereby factor in the period served in Custody of a year (12 months) and have it subtracted from the 20 years meted out against the Petitioner.
10. I hereby set aside the 20 years imprisonment and substitute it with a sentence of 19 years which sentence should run from the date of sentence that is from 16th December, 2022.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohProsecutor – Mr. MusyokiPetitioner – Present in Person