• Appeal Court upholds conviction but sets aside death sentence, orders resentencing by the High Court.
• Judges said the man was sentenced without being given an opportunity to plead in mitigation, hence, the resentencing, which might or might not be death.
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A man who killed his frail father by breaking his neck, saying he was old and a nuisance, will be resentenced after the Appeal Court set aside his death sentence.
Felix Muchiti was sentenced to death in 2015 after he was found guilty of killing his father Ibrahim Muchiti who was living alone with him in Kakamega.
However, Appeal Court judges Daniel Musinga, Gatembu Kairu and Agnes Murgor said on Friday last week the record did not disclose that Muchiti had an opportunity to plead in mitigation. Therefore, they sent the case back to the High Court for resentencing.
"Accordingly, we dismiss the appeal against the conviction but allow the appeal against the sentence. To that extent only, this appeal is hereby allowed. The case to be remitted back to the High Court for resentencing," the judges ruled.
Muchiti had pleaded not guilty and said he found his father fatally beaten but still breathing. He said he was unable to get help in time and his father died in his arms.
But a witness, Washington, who is Muchiti's nephew, said he had frequently complained about his father being a nuisance, useless and old.
The High Court established that Muchiti was responsible for the fatal injuries and ought to have known that dislocation of the neck and laceration of the spinal court would have caused death. His father's leg also was broken.
They said despite his father's critical condition, Muchiti took no steps to seek urgent medical attention or have his father hospitalised.
Washington testified that at 5pm on December 29, 2009, he saw Muchiti walking towards the house of his grandfather. Then, accompanied by his grandmother, they came towards him and told him, "Come and see Mzee has fallen."
He followed and found Muchiti's father lying on the bed with a broken right leg. He was unable to speak. Washington told his grandmother that earlier, at about 8am, the father confided in him that Muchiti had beaten him all night, claiming he was a nuisance.
At 10pm, he heard Muchiti calling out to another relative, Dan Muyonga. "...Wake up as the old man has died."
Augustine Muyonga said at 10pm, Muchiti knocked at his door and told him to inform Washington and his wife.
Augustine said he refused so but finally informed Washington and his wife. Together they went to the house where they remained until 2am.
Augustine saw the father lying in bed, with a broken leg, breathing slightly. Muchiti was gone but returned the next day at 11am when he was arrested by police.
Witness Angelina testified that at about 6pm when she checked on Muchiti’s father, she found he was not breathing or speaking.
She told Muchiti his father was not breathing, but he said nothing and left. She informed Washington who reported the to the assistant chief.
A pathologist testified the victim's second neck bone had been dislocated and the spinal cord injured. He concluded the use of death was a severe neck injury.
Muchiti said he left his father at home praying at about 5am and had gone to work at a construction site. After offloading materials because of rain, he went to the market to look for cowpea seeds.
On returning at 7pm he found the rear door open, which was unusual, and on entering called out to his father. There was no answer.
When he went to his bedroom, he found him lying face down under the bed. Though he was still breathing, he was unable to speak. He lifted him up onto the bed, and then went out to call his Uncle Cosmos, but he was not at home. He looked for other relatives and informed them.
He returned home to find his father still struggling to breathe.
Muchiti said he did not get any help to take his father to the hospital, and at about 10pm his father died in his arms.
(Edited by V. Graham)