Bett v Republic [2023] KEHC 27034 (KLR)

Bett v Republic (Miscellaneous Criminal Application E018 of 2023) [2023] KEHC 27034 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27034 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Criminal Application E018 of 2023

JK Sergon, J

December 13, 2023

Between

Philiph Kipkoskei Bett

Applicant

and

Republic

Respondent

Ruling

1. Pursuant to the Provision of Articles 19, 20, 22, 26, 28, 49, 50, 159, 165 and 259 of the Constitution and Sections 363 and 364 of the Criminal Procedure Code, Philiph Kipkoskei Bett hereinafter referred to as the Applicant filed the instant Misc. Application and applied for re-sentencing and revision of the sentence imposed on him.

2. The Applicant also cited the Supreme Court Decision of Francis Karioko Muruatetu and Another -vs- Republic where the Court pronounced itself stating that a mandatory death sentence is unconstitutional.

3. I have considered the arguments put forward by the Petitioner. I have also taken into account the submission of Mr. Musyoki, Learned Senior Prosecuting Counsel. It is the submission of the Petitioner that his mitigation was not taken into Account by this Court before pronouncing the death sentence imposed against him. He further argued that the death sentence is unconstitutional. Mr. Musyoki urged this court to instead pronounce a definite sentence.

4. The history of the instant Petition is short and straightforward. The Petitioner was tried, convicted and sentenced to death for the offence of Murder on 1st September, 2016.

5. The particulars of the offence were that on 3r day of June, 2011 at Olongoswet Village, Kapkimolwo Location at the Bomet District of the then Rift Valley Province, the Applicant Murdered Selina Chepkwony. It is also clear from the record that the Petitioner filed an Appeal before the Court of Appeal challenging both the Order on conviction and the sentence vide Criminal Appeal No.23 of 2016.

6. It is apparent that the Petitioner filed a Notice of Withdrawal in the court of appeal on 6th October, 2020 whereof, he withdrew the aforesaid Appeal. The withdrawal of the appeal paved the way for this Court to entertain the Instant Application.

7. It is not in dispute that the Applicant was sentenced to death on 1st September, 2016. The record does not show that this Court considered the mitigating factors before pronouncing the death sentence.

8. In the case of Francis Karioko Muruatetu and Anoter -vs- Republic, the Supreme Court declared inter alia that the mandatory death penalty imposed under Section 204 of the Penal Code is unconstitutional. The Supreme Court further permitted the Court that convicted an Accused Person to conduct a sentence hearing to determine the appropriate sentence.

9. It is also clear from the provisions of Section 333(2) of the Criminal Procedure Code that Courts are directed to take into Account the period served in Custody to establish the appropriate sentence. The record shows that the Applicant was arrested and taken to Custody on 4th June, 2011. It is apparent that the Applicant was in Custody for 5 ½ years before being sentenced.

10. In the circumstances, this Court is entitled to consider the appropriate sentence. The Applicant has stated that he had learnt a lot while in Prison where he joined Rehabilitation Centres, Correctional Institutions and has even trained in Catechetical Course in Bible Studies. The Applicant produced in Court various Certificates he earned while in Prison.

11. I find the Applicant to be properly before this court. This Court takes into account the mitigating factors outlined by the Applicant. This Court also takes into account the period of 5 years 3 months the Applicant spent in Custody while awaiting trial. The applicant has been in Prison awaiting execution of the death sentence for the last 7 years. The Court imposed the death sentence as a mandatory sentence under Section 204 of the Penal Code. I have already stated that the Supreme Court has declared mandatory death sentence as unconstitutional.

12. Having taken into account, the decision of the Supreme Court in the case of Francis Karioko Muruatetu and another -vs- Republic and having considered the mitigating factors and the fact that this Court did not take into account the period served in Custody, I hereby set aside the order sentencing the applicant Namely: Philiph Kipkosgei Bett to suffer death and instead substitute it with the appropriate sentence which in the circumstances of this Case should be 20 years imprisonment. The aforesaid sentence to run from 1st September, 2016.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. J.K. SERGON........................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR