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Kirui v Republic (Petition E003 of 2021) [2022] KEHC 10536 (KLR) (17 June 2022) (Sentence)
Neutral citation:
[2022] KEHC 10536 (KLR)
Republic of Kenya
Petition E003 of 2021
AN Ongeri, J
June 17, 2022
Between
Wesley Kipyegon Kirui
Petitioner
and
Republic
Respondent
Sentence
1.The Petitioner Wesley Kipyegon Kirui was sentenced to suffer death for murder contrary to section 203 as read with section 204 of the penal code.
2.The particulars of the charge were that on 17/10/2001 at Itembe Village, Bomet District, the Petitioner murdered Bernard Bii.
3.The prosecution evidence in summary was that the petitioner stabbed the deceased with a knife shortly after they had a confrontation. The petitioner was arrested with the murder weapon whilst hiding in a maize plantation.
4.The murder weapon was taken for analysis and it was found to contain blood group O which was the same as that of the deceased.
5.The court found that the circumstantial evidence was watertight, convicted the petitioner and sentenced him to death.
6.The petitioner has applied for resentencing following the decision in the Francis Karioko Muruatetu case.
7.The Supreme Court in Francis Karioko Muruatetu & Another Vs. Republic [2017] eKLR held that the mandatory nature of the death sentence was unconstitutional and stated the following; “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.”
8.I have considered the submissions filed in respect of the petitioner.
9.The petitioner’s counsel submitted that the court had jurisdiction to deal with the petitioner’s application for re-sentencing, as a court’s jurisdiction flows either from the constitution or legislation or both and cited the case of Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others, Application No.2 of 2011.
10.Counsel submitted that the petition for re-sentencing was a means of granting the petitioner relief for violation occasioned by the mandatory death sentence and cited the case of Michael Kathewa Laichena & Another vs. Republic (2018) eKLR.
11.Counsel submitted that the petitioner had been in uninterrupted custody for a period of fourteen (14) years and he learnt that crime never pays. He further submitted that the incarceration of the petitioner has achieved the objectives of sentencing to wit retribution, deterrence and rehabilitation.
12.Counsel submitted that the petitioner was remorseful and regrets the circumstances that led to the loss of life. He had ensured that there is reconciliation with the victim’s family by directing his family to conduct a cleansing ceremony which was conducted by the elders.
13.Counsel finally submitted on behalf of the petitioner, that the petitioner had reformed and whilst serving sentence he engaged in carpentry and joinery courses.
14.Counsel for the petitioner urged the court to vary the petitioner’s sentence and find the period already served sufficient.
15.I have also considered a contingent of documents filed in respect of the petitioner. The petitioner while in custody engaged in carpentry and joinery courses and attained the following certificates.i.Certificate in Carpentry/Joiner Grade III Trade Test, December 2012;ii.Certificate in Carpentry/Joiner Grade II Trade Test, August 2014; andiii.Certificate in Carpentry/Joiner Grade I Trade Test, August 2015.
16.The Petitioner has been in prison since 17th October 2001 when he was arrested; a period of 21 years.
17.The petitioner has already been punished for the offence he committed.
18.I accordingly order that the Petitioner be released forthwith unless lawfully held for any other reason.
DELIVERED, SIGNED AND DATED AT KERICHO THIS 17TH DAY OF JUNE 2022.A. N. ONGERIJUDGE
