REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

PETITION CASE  NO. 41 OF 2019

MUSA KIPLANGAT BIEGON...............................PETITIONER

VERSUS

REPUBLIC.............................................................RESPONDENT

RE-SENTENCING RULING

1. The Petitioner was sentence to death on 27/1/2006 for the charge of Murder Contrary to Section 203 as read with Section 204 of the Penal Code.

2. The particulars of the charge were that on 9/7/2003 at Kapsiya Village, Mobego Location in Kericho District the Petitioner murdered Erick Kipkurui Langat.

3. The evidence in summary was that the Petitioner tied the deceased, a boy aged 12 years old with ropes on the legs and hands and beat him using a whip for refusing to go to school.  In the morning, the deceased was not able to walk and he died at 1.00 p.m.  The Petitioner did not make any attempt to take the deceased to Hospital before he died.

4. There is evidence that the Petitioner continued to assault the deceased the following morning and PW.2 and PW.3 saw him hit the deceased with a torch on the head and also stepping on him.

5. The Doctor who did the Post Mortem confirmed that the deceased died from Cardio Respiratory Arrest secondary to increased intracranial pressure resulting from severe head injury with fractured skull and intracranial bleeding due to injuries inflicted by repeated battering with a blunt object.

6. The Petitioner said he slapped the deceased who ran away and fell down near a store where he was hit by a piece of wood on the head.  The Petitioner said he started looking for people to help him take the deceased to Hospital after he came back from the deceased’s school but the deceased died shortly thereafter.

7. The Court found that the Petitioner assaulted the deceased mercilessly for a long period at night and he continued the following morning when the deceased made an attempt to escape.

8. The Petitioner was sentenced to death but the sentence was commuted to life imprisonment.

9. The Petitioner has now applied to this Court for resentence hearing following the case of Francis Karioko Muruatetu which declared the mandatory nature of the death sentence unlawful.

10. In the current case, I have considered the petition together with the Probation Officer’s Pre-Sentence Report filed on 21/10/2020.

11. The Petitioner said that he is in poor health and he is now aged 70 years old and he has not learnt any skills during the 17 years he has been in custody.

12. In his submissions he says that he was 53 years old at the time of his arrest and he is now 70 years old having served 17 years in jail.

13. He also stated in his submissions that he developed diabetes while in prison together with Peptic Ulcers and treatment in Prison is problematic.

14. I take note of the fact that the offence committed by the petitioner was serious. 

15. The petitioner was angry with the deceased who was his son for refusing to go to school.

16. The petitioner has been in custody for 17 years since he was arrested which is a considerable number of years in prison and this must have accorded him an opportunity for self-reflection and a resolve to change into a law-abiding citizen.

17. In view of the above I am inclined to reduce his imprisonment period and hereby reduce the same to the period already served.

18. I direct that the petitioner be released forthwith unless lawfully held for any other reason.

Delivered, signed and dated at Kericho this 3^rd day of December, 2020.

A. N. ONGERI

JUDGE