Why man jailed for murder while ‘insane’ could be freed


A retired athlete and a coach have been sentenced by a JKIA court to one and half years and one year in jail, respectively, for fabricating documents with a view to tarnishing Kenya's image as a doping haven

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On February 26, 1988, Philip Kemboi Bor was recovering from a severe case of cerebral malaria for which he had received treatment.

As he was sleeping, a neighbour woke him up. Startled, Bor hit him and the neighbour later succumbed to his injuries.

Bor, then 18, was arrested and taken to Lesos Police Station, where he was questioned. He was then arraigned, and on July 7, 1989, the late Justice Daniel Aganyanya found him guilty of murder, but also “insane”.

After being charged with the offense of murder contrary to Section 203, as read with Section 204 of the Penal Code, it was ordered that Bor be detained at the pleasure of the President.

He was imprisoned at the Kamiti Maximum Prison and has been serving an indefinite prison term. His petitions to be released through the Power of Mercy Advisory Committee have always failed.

Bor could, however, soon be set free after serving 34 years, if he is found mentally fit after undergoing an assessment.

On Tuesday, High Court Judge Reuben Nyakundi ordered his mental assessment after his successful petition challenging his imprisonment.

His lawyer, Oscar Oduor from the Centre for Legal Support and Inmate Rehabilitation, told the court it was illegal to jail a mentally unfit person, and his client deserved to be released from prison upon the promulgation of the Constitution of Kenya 2010.

The lawyer argued that because of his state of mind, Bor was not able to respond to the issues being put to him adequately at the time of his trial. He was allegedly also thoroughly beaten as he was accused of refusing to respond to questions under interrogation.

Bor had been taken to Moi Teaching and Referral Hospital (MTRH) in Eldoret for treatment of the injuries sustained at the time of arrest before being presented in court for plea on March 3, 1988.

He served at Kamiti Prison from 1989 to 2009, Nyeri Main Prison from 2009 to 2010, and has been at the Eldoret Main Prison from 2010 to date.

In 1991, with his father’s assistance, he began efforts to obtain his file at Eldoret and Nakuru court registries to file an appeal, but to no avail.

Eventually, in 2019, he filed a petition at the High Court in Eldoret, which was withdrawn by his then advocates on record. His current lawyer filed a fresh petition in 2023 before Justice Nyakundi, which has been successful.

Justice Nyakundi ruled that 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,” ruled the judge.

Consequently, the High Court judge directed the Director of Public Prosecutions to initiate the process of amending Section 166 of the Criminal Procedure Code.

He further ordered the Eldoret prison boss to have Bor escorted to MTRH for a fresh psychiatric report.

 The matter will be mentioned next week.