The High Court in Eldoret has set free a man who was jailed for murder 35 years ago while he was mentally ill.
Justice Reuben Nyakundi freed Philip Bor, who was jailed in 1989 when he was aged just 18.
Bor, now 54, was freed under reliefs in the Constitution that protect his rights and freedoms.
He said his long time in jail had been an opportunity to learn the hard way.
"I got born again while in jail and I am now ready to start a new life out here", he said.
Bor recalled that on February 26, 1988, he was recovering from severe cerebral malaria at hime in Kericho.
While deeply asleep, a neighbour woke him from his slumber and, startled, he hit the neighbour who later died, leading to the murder case.
Through lawyer Oscar Oduor from the Centre for Legal Support and Inmate Rehabilitation, Bor filed his appeal arguing that his conviction infringed on his constitutional right to equality and freedom from discrimination and human dignity.
He argued that being found guilty of murder yet he was mentally ill was a violation of his rights.
"The court agreed with us that the impugned provisions of Section 166 of the Criminal Procedure Code are in breach of the doctrine of separation of powers and, therefore, the same is unconstitutional," Oduor said.
The Court agreed that a finding of guilt but mentally ill is ironic as the fact that one is insane would mean that he does not have the capacity to understand the charge sufficiently in order to answer to it.
The court noted that putting such a person through a hearing is a breach of his constitutional rights. "Furthermore, Bor’s actions in 1988 were not only unintended but also unforeseen,” Oduor argued.
Bor convinced Justice Nyakundi that he deserved freedom from the prison but the only barrier between him and his freedom was a mental assessment report to ascertain he is mentally fit.
Justice Nyakundi ordered a fresh mental assessment on the convict. On April 22, Bor got a medical report from Moi Teaching and Referral Hospital that confirmed he was mentally fit.
Justice Nyakundi consequently issued a release order that saw Bor walk out of prison after serving a jail term of 35 years.
Bor's earlier attempts to petition to be released by the Power of Mercy Advisory Committee failed. While filing Bor's petition, Oduor told the court that the provisions of section 166 of the CPC subjecting the sentencing process and its review to the Executive arm of the government, that is the President, breached the doctrine of separation of powers and, therefore, the section is unconstitutional.
Justice Nyakundi ruled that the appropriate reliefs sought in the petition were meritorious to be granted by the court under Article 23 of the Constitution.
“The review of the conviction of guilty but insane be made and the said conviction be replaced with a finding of not guilty for reason of insanity,” Justice Nyakundi ruled.
He said the Power of Mercy Advisory Committee failed to take advantage of their constitutional mandate to alleviate Bor’s suffering and set aside his detention.
Under Section 12 of the Penal Code, an accused person cannot be held criminally responsible for his acts if it is established that he did not know what he was doing or that he was incapable of understanding that he ought not to do the act.