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The Nairobian

Man convicted while mentally ill released after 34 years in prison

National

By Lynn Kolongei | May 03, 2024

**Phillip Bor (left) shakes hands with his lawyer Oscar Oduor. Bor was jailed in 1989 aged 18 when he was found guilty of murder.** [Lynn Kolongei, Standard]

The High Court in Eldoret has set free a man who spent 34 years in prison after finding out that he was convicted while mentally ill.

Justice Reuben Nyakundi ordered that Philip Bor be released from prison after finding merit in his appeal.

Bor was jailed in 1989 aged 18 when he was found guilty of murder. He was sentenced to serve indefinitely at the President's pleasure. He now leaves prison more than three decades later aged 53.

Bor petitioned the High Court, challenging his conviction. Through his advocate Oscar Oduor, he claimed that his conviction infringed his constitutional rights to equality and freedom from discrimination, human dignity, freedom and security of a person, and freedom from slavery, servitude, and forced labour.

He further argued that the court’s process failed to honour his rights as an arrested person and failed to grant him a fair hearing.

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Oduor told the court that according to the Constitution of Kenya 2010, it is unfair to jail someone who is mentally unfit, hence his client deserved to be released from prison upon implementation of the new Constitution.

“The court agreed that a finding of guilt but insane is ironic as the fact that he is insane would mean that he does not have the capacity to understand the charge sufficiently in order to answer to it. It follows that putting such a person through a hearing is a breach of his constitutional rights. Furthermore, Bor’s actions were not only unintended but also unforeseen,” Oduor argued.

Before giving a verdict, Justice Nyakundi had ordered that the convict undergo a mental assessment to ascertain if he was now mentally fit.

The judge ruled that the appropriate reliefs sought in the petition were meritorious to be granted by the court under Article 23 of the Constitution in favour of the petitioner.

“The review of the conviction of guilty but insane is made and the said conviction be replaced with a finding of not guilty for reason of insanity,” ruled Justice Nyakundi.

He noted that the Power of Mercy Advisory Committee (Pomac) had an opportunity to alleviate Bor’s suffering by their constitutional mandate.

On April 22, a psychiatrist's report confirmed that Bor was mentally fit, leading to the court issuing a release order. Yesterday, Bor left the Eldoret GK Prison as a free man.

Bor said that he was headed to his rural home at Cherire in Kapsoit, Kericho County.

“I know that my people have been waiting to see me. I am hopeful that I will still achieve my goals. I look forward to meeting my soulmate, marrying, and moving on,” he said.

It was the events of February 26, 1988, that led him to prison.

On the fateful day, he had been recovering from severe cerebral malaria after seeking treatment.

As he was resting and in deep sleep, a neighbour woke him up. Frightened, Bor hit the neighbour who later succumbed.

He was arrested and taken to Lesos Police Station, where he was questioned. However, he was unable to respond to the grilling adequately.

On July 7, 1989, the Justice Daniel Aganyanya (now late) found Bor guilty of murder.

He served at Kamiti Prison from 1989 to 2009, Nyeri Main Prison from 2009 to 2010, and at the Eldoret Main Prison from 2010 to April 2024.