[2014] KEHC 5039 (KLR)
Although the Penal Code prescribes the death penalty for murder, the court is enjoined by the Constitution to interpret the law in a manner that gives effect to the right to life. The court considered the period the accused had already spent in custody, his remorse, and the fact that he was a first offender. The...
Source-derived case information.
- Citation
- [2014] KEHC 5039 (KLR)
- Parties
- Applicant: Republic; Defendant: Wycliffe Kipkorir Bett
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2009
- Procedural Posture
- Criminal Case / Sentencing Ruling
- Outcome
- convicted and sentenced
- Judges
- MJA Emukule
- Legal Topics
- Murder, Sentencing, Mitigation, Death Penalty, Constitutional Right to Life
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wycliffe Kipkorir Bett
Defendant
Procedural Posture
Criminal Case / Sentencing Ruling
Legal Issues
- 1 Whether the mandatory death penalty for murder under Section 204 of the Penal Code should be imposed in light of constitutional rights to life.
- 2 Whether the period spent in custody should be considered in sentencing.
Ratio Decidendi
Although the Penal Code prescribes the death penalty for murder, the court is enjoined by the Constitution to interpret the law in a manner that gives effect to the right to life. The court considered the period the accused had already spent in custody, his remorse, and the fact that he was a first offender. The court found that a custodial sentence of twenty-five years, commencing from the date of detention, was appropriate and consistent with both statutory and constitutional requirements, preferring the right to life over the imposition of the death penalty.
Court Disposition
convicted and sentenced
Orders
- The accused is sentenced to twenty-five years imprisonment to run from the date of his detention on 16.01.2009.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NO. 7 OF 2009
REPUBLIC..........................................................................PROSECUTOR
VERSUS
WYCLIFFE KIPKORIR BETT.......................................................ACCUSED
RULING ON SENTENCE
The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63, Laws of Kenya). On the evidence I found the accused guilty and convicted him of the offence of murder contrary to Section 203 of the Penal Code aforesaid, and called for mitigation in terms of Section 329 of the Penal Code before sentence.
In his submissions made on 12. 02. 2014, Mr. Orege Counsel for the accused submitted that the accused was remorseful for the loss of his brother, and that it was a great loss to himself as well. The accused was arrested on 16. 09. 2009 and has been in custody for slightly over 5 years. He is now thirty-two years of age. He was married to a house wife with one child born in 2004. Since his incarceration the wife has taken off with the child. Counsel submitted that the accused has learnt his lesson and has changed his attitude to life. Counsel asked for leniency.
The prosecution submitted that the accused had no previous record and that he was a first offender.
I have considered the submissions of both counsel for the accused, and the prosecution. The punishment for the offence of murder is death as prescribed under Section 204 of the Penal Code. The accused has been in custody for five years and now three months. He says he has learnt his lesson and has a different look to life.
Though Section 204 prescribes the death penalty, and Article 26(3) of the Constitution appears to support the death penalty as prescribed in the Penal Code, the same Constitution enjoins the court to give an interpretation that give effect to the rights under the Constitution, that is what Article 24(2)(b) & (c) of the Constitution of Kenya 2010 says. Though the limitations under the Constitution had equal force to the rights, the core right is to life, and not the punishment of death. Accused took away one life. The State should give effect to the right to life as a preferred interpretation to the Constitution.
Taking the above view and taking into account that the accused has been in custody for the last five years and nearly four months, I sentence the accused to twenty-five years imprisonment to run from the date of his detention on 16. 01. 2009.
It is so ordered.
Dated, signed and delivered at Nakuru this16th day of May 2014
M. J. ANYARA EMUKULE
JUDGE