[2023] KEHC 25444 (KLR)

Terer v Republic (Miscellaneous Criminal Application E056 of 2021) [2023] KEHC 25444 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25444 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Criminal Application E056 of 2021

RL Korir, J

November 16, 2023

Between

Wesley Kiprono Terer

Applicant

and

Republic

Respondent

Ruling

1. The Applicant was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He faced two counts of murder in High Court Criminal Case Number 8 of 2016. He was alleged to have murdered his father Joseph Kipketer Langat and his mother Caroline Chepkorir Langat at their home in Kuriot village, Sotik District within Bomet County on 24th April 2016.

2. The Applicant was found guilty of murder by Muya J. on 5th October 2016 and was accordingly convicted. The trial court heard and considered his mitigation and he was sentenced to suffer death.

3. The Applicant has now applied for resentencing. In his undated Application filed on 13th September 2022, he relied on the Supreme Court case of Francis Karioko Muruatetu and another vs Republic (Supreme Court Petition No. 15 of 2015) which stated that the mandatory death sentence was unconstitutional.

Applicant’s mitigation. 4. In his undated submissions, the Applicant submitted that he had taken full responsibility for the crime as he had undergone punishment for the seven years he had been in prison. That he was remorseful, repentant and regretted the crime he committed. He further submitted that he would not be a danger to the society if he was acquitted because of the jail term he has already served. That the jail term he had served was enough to rehabilitate and reform him. He relied on Francis Opondo vs Republic (2017) eKLR.

5. It was the Applicant’s submission that at the time of the commission of the offence, he was aged 23 years old and was unmarried. That he intends and wishes to have a family.

6. The Applicant submitted that the commission of the offence was brought about by drunkenness. That even though he had a distorted relationship with his parents, he had no motive to kill them. He further submitted that he killed them when he was denied school fees for class 6. That he was provoked into committing the offence by anger and rage and that he lacked self-control then but he was presently a mature man.

7. It was the Applicant’s submission that despite being given a life sentence, he had decided to do something with his life. That he was now disciplined and a God fearing man and he had been baptized by the Catholic Church.

8. The Applicant submitted that the death sentence was severe and it had been declared unconstitutional by the Supreme Court case of Francis Karioko Muruatetu & another vs Republic (2017) eKLR.

9. In support of his application for reduction of the sentence, the Applicant cited the case of Francis Opondo (supra) where the court held that an Accused should benefit from the least severe sentence. He also cited Daniel Gichimu & another vs Republic (2018) eKLR where the court reduced the Accused sentenced after considering his mitigation and the circumstances of the case.

10. It was the Applicant’s submission that this court should reconsider the period spent in custody as per section 333 (2) of the Criminal Procedure Code. He relied on Ahamad Abolfathi Mohammed & another vs Republic (2018) eKLR. That this court should declare the seven years he has served in prison as time served or in the alternative, issue a fair and reasonable sentence while taking into consideration his rehabilitation and transformation while in custody.

11. The Applicant’s sisters, Naomi Chepngeno (PW2) and Veronica Chemutai (PW1) each wrote a note to this court and when the matter came up for hearing, they requested audience and told the court that they had forgiven their brother. They made a passionate plea that though they were pained by their brother’s senseless killing of their parents, there was no one left in their home as their parents were deceased and their only brother was in jail. They stated that there was no one left to take care of their property and continue the family lineage. They both asked this court to consider a Probationary sentence.

12. While dealing with the mandatory nature of the death sentence in murder cases, the Supreme Court in Francis Karioko Muruatetu & another vs Republic (2017) eKLR held that:-“The mandatory nature of the death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the Constitution.”

13. It was clear from the Muruatetu case that the Supreme Court saved the validity of the death sentence. This was the holding in Republic vs Bernard Kibet Busienei (2021) eKLR, where this court held: -“I have also borne in mind, on the authority of the Supreme Court decision in Francis Karioko Muruatetu & Another V. Republic(2017) eKLR that the mandatory nature of death sentence for the offence of murder was unconstitutional; and, that a trial court ought to exercise discretion after taking into consideration the circumstances of the case as well as any aggravating or mitigating circumstances before meting an appropriate sentence. I however, observe that the Supreme Court saved the validity of the death sentence by stating thus:-“For avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution…”

14. The Sentencing Guidelines 2023 at paragraph 2. 2.4 provides that: -Though a recognized form of punishment, the last execution took place in 1987. Following the Supreme Court’s decisions in Muruatetu I & II, the mandatory nature of death sentence with respect to murder was declared unconstitutional. The court specified that the decision does not outlaw the death penalty and that is still applicable as a maximum punishment in instances where the circumstances so warrant.

15. It is therefore clear that the death penalty was still available as a sentence for the offence of murder if the circumstances of the case warranted it.

16. I have looked at the trial record to glean the circumstances of the heinous offence. The record shows that the Accused had prior to the date of the offence, threatened to kill whenever he was not given money by his parents. He indulged in alcohol and drugs. That on the material day being 24th April 2016, he arrived home having removed his shirt while threatening to kill somebody. He first met his mother whom he hacked with a hoe and immediately went for his father whom he hit with a hoe and when the wooden handle broke, he went into the house to pick an axe and proceeded to hack his father. All these was in the full view of his sisters Veronica and Naomi who testified before the trial court but have now forgiven him and pray for his release.

17. The Probation Officer’s Report filed on 31st October 2016 described the Accused as a volatile and hot tempered man who was given to violence and was a threat to the family and neighbours. The Probation Officer recommended a long sentence particularly because even after being put in custody, the Accused continued issuing threats from prison promising to kill more victims if released.

18. This in my view were aggravating circumstances. It is unthinkable for one to resort to violence and kill a parent, let alone two. I agree with the trial court that with those circumstances, the Accused deserved the maximum sentence then.

19. The Supreme Court in Muruatetu & another vs Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) held that:-“In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court; (a)Age of the offender;

(b)Being a first offender;

(c)Whether the offender pleaded guilty;

(d)Character and record of the offender;

(e)Commission of the offence in response to gender-based violence;

(f)The manner in which the offence was committed on the victim;

(g)The physical and psychological effect of the offence on the victim’s family;

(h)Remorsefulness of the offender;

(i)The possibility of reform and social re-adaptation of the offender;

(j)Any other factor that the court considers relevant.”

20. This court is also guided by the objectives of sentencing as set out in the Sentencing Guidelines 2023. They include retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation, reconciliation and reintegration.

21. I have considered the circumstances of the case, the Appellant’s mitigation and his sisters’ submissions. I have considered the circumstances as stated in paragraph 15 of this Ruling. I am well aware that the offence was committed in 2016 and the Applicant now states that he has reformed. He told the court that he was the only son of his parents and that his sisters had forgiven him.

22. I have no doubt that the Applicant’s sisters who made submissions before this court in their capacity as victims have forgiven him. Being the primary victims, this court has considered their submissions. This court empathizes with them for the dilemma they find themselves in having lost their parents and now staring at the demise of their home if their only brother was not released. Their cry that there was no one to take care of and inherit their parent’s property is however is misplaced since the law allows them as daughters to inherit.

23. I have considered the Applicant’s written submissions which are very persuasive. I however considered the Applicant’s demeanor before me. He had no sign of remorse. The 7 years he has spent in prison in the opinion of this court was not sufficient to have reformed him. He continues to deserve a deterrent sentence. I have considered that he was a young man with a desire to found a family when released. However, that option was not available to him now. He deserved the death penalty for the heinous offence of snuffing out the lives of his two parents whose only mistake it seemed to him was to bring him into this world. I shall however temper justice with mercy and grant the Applicant a determinate sentence.

24. In the final analysis, the Applicant’s application for resentencing succeeds to the extent only that the Applicant’s death sentence is substituted with a determinate prison sentence of 45 years’ imprisonment.

25. For avoidance of doubt, the sentence of 45 years’ imprisonment shall be deemed to have commenced on 3rd May 2016 being the date of his first arraignment in court.

26. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED THIS 16THDAY OF NOVEMBER, 2023. ........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Njeru for the State, the Applicant present acting in person. Siele (Court Assistant)