Ronald Kipkoech Bii v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO PETITION NO.40 OF 2019 RONALD KIPKOECH BII.......................................................................PETITIONER VERSUS REPUBLIC...............................................................................................RESPONDENT RULING ON SENTENCE RE-HEARING 1. The Petitioner was sentenced to death 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 16/2/2015 at Getarwet village in Bureti District within Kericho County, the petitioner murdered MERCY CHERONO. 3. The prosecution evidence in summary was that on that material day, PW1 saw the petitioner beating his wife with a piece of wood. The piece of wood broke into pieces and the petitioner took another and then a 3 rd piece of wood and continued beating the wife. 4. PW1 tried to rescue her but the petitioner had a panga and PW1 could not approach him. When the deceased fell down, the petitioner kicked her on the back and then took her inside the house. 5. That night a police vehicle arrived at the house of the petitioner and when PW1 went to look, the wife of the petitioner was dead. 6. The medical officer who did the post mortem on the deceased formed the opinion that the deceased died of cyanosis due to strangulation. The doctor said she had a fracture of the neck or cervical bone at C4 to C6. 7. The Petitioner said he arrived at 11p.m at night at his home on the material day from a funeral and he called the deceased but she did not reply. He peeped through the window and saw her sleeping across the bed. He said he touched the door and it was not locked from inside and he entered and found the deceased with foam oozing from her mouth. 8. The Petitioner said he went and called his brother who told him that the deceased was dead. He said the deceased suffered from epilepsy and she was on traditional medicine. He said they had lived together as husband and wife for one year. He said he had along standing dispute with PW1 and he denied having beaten the wife. 9. The trial court found the petitioner guilty as charged and sentenced him to death. The petitioner has now filed this petition following the supreme court decision in the case of FRANCIS KARIOKO MURUATETU AND ANOTHER V REPUBLIC [2017]eKLR where the supreme court held that the mandatory nature of the death penalty is unlawful. 10. However in the current case, I find that the trial court took into consideration the decision in the FRANCIS KARIOKO case. 11. On paragraph two of its ruling on sentence the court held as follows; In its decision in Francis Karioko Muruatetu & another v Republic [2017]eKLR, the Supreme Court found that the mandatory death sentence provided for murder under section 204 of the Penal Code is unconstitutional. However, it expressly stated that the finding did not disturb the validity of death penalty, which is constitutional in accordance with section 26 (3) of the Constitution. The finding of the court, put differently, is that while the death penalty is not per se unconstitutional, imposing the death sentence without considering mitigating factors or extenuating circumstances violates the right to a fair trial guaranteed under Article 50 (2) of the Constitution. This gives the court, where the penalty provided for an offence is the death sentence, the discretion to consider mitigating factors in determining what sentence to pass. The court is not bound to impose the death penalty, but neither is it precluded from passing the death penalty should the circumstances so demand.

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