Review reformed convicts sentences, Odunga directs

Wednesday, August 28th, 2019 00:00 |
Justice George Odunga has directed the Commissioner of Prisons to calculate remission of sentence for prisoners. Photo/PD/FILE

Prisoners serving life imprisonment for robbery with violence or murder, are entitled to a reduction of their sentences if they demonstrate that they have reformed and have been rehabilitated, the High Court has ruled.

Justice George Odunga yesterday said the law barring prisoners serving life imprisonment or those convicted of robbery and murder from sentence remission was unconstitutional, null and void, since it was inconsistent with the provisions of the Constitution on the right to equality before the law and the right to equal protection and benefit.

He ordered that prisoners serving a fixed or definite or determinate period of imprisonment were entitled to remission of their sentences, and directed the Commissioner of Prisons to proceed and calculate remission of sentence for the prisoners.

Under the Kenya Prisons Act, only convicted criminal prisoners sentenced to imprisonment for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences.

Irrational presumption

Justice Odunga said though it was true that robbery and murder were indeed serious offences, they were, however, not the only grave offences. 

He warned that the dignity of the person is ignored if he is denied remission, that is available to others serving similar sentences, simply on the irrational presumption that one is incapable of reforming.

“To, therefore, maintain that those convicted of offences under section 296(2) of the Penal Code are not entitled to consideration for remission, presupposes that such offenders are incapable of reform. First there is no empirical evidence before me to enable me to justify such a conclusion,” the judge ruled.

He cited a case where an appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by the Sexual Offences Act. 

The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender, and he pleaded for leniency. 

“However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl,” he said  in the landmark ruling.

 “The gravity of the offences cannot be good reason for denying these convicts remission for those convicted of grave offences like sexual offences are entitled to remission of their sentences.”

Justice Odunga made the ruling in a case in which the petitioners, Sammy Musembi Mbugua, Nicholas Mukila Ndeti, Sammy Kitonga Mukusya, John Muoki Mbatha and Paul Mumo Muia, who are long-time prisoners serving various sentences ranging from 15 years to 40 years, had petitioned the Attorney General and the Kenya Prisons Service over their sentences.

They were all charged and convicted of the offence of robbery with violence. The prisoners said the law treated them unequally and discriminately in computing their terms of imprisonment. 

Interpretation of law

As a result, they sought interpretation of, and the position of law in relation to remission of part sentence for robbery with violence convicts, saying the law was not clear. 

The convicts said a terrorist act and robbery with violence were by all characterisation of violent offences with varying degrees of premeditation and fore planning, yet upon conviction and admission to prison on term imprisonment, except for a robbery with violence, all other offenders are credited with remission equivalent to one third of the term stated in the warrant of imprisonment. 

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