Korir v Republic [2023] KEHC 26994 (KLR)

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