Case Metadata

Exclusion of prisoners serving life sentences or detention at the President's pleasure from the benefit of remission under section 46(1)(ii) of the Prisons Act is discriminatory.

Kenneth Otieno Odhiambo & 4 others v Republic

Petition No 68 of 2018

High Court at Kisumu

T W Cherere, J

March 28, 2019

Reported by Beryl A Ikamari

Constitutional Law-fundamental rights and freedoms-right to equality and freedom from discrimination-constitutionality of a statutory provision-whether section 46(1)(ii) of the Prisons Act was discriminatory on grounds that it excluded prisons serving life sentences or detention at the President's pleasure from benefitting from remission of their sentences-Constitution of Kenya 2010, article 50(2)(p).

Statutes-constitutionality of statutory provisions-constitutionality of section 46(1)(ii) of the Prisons Act-whether in denying prisoners, serving life sentences and detention at the President's pleasure, the benefit of remission of sentence, section 46(1)(ii) of the Prisons Act was discriminatory and unconstitutional-Constitution of Kenya 2010, article 50(2)(p); Prisons Act (Cap 90), section 46(1)(ii).

Brief facts

The petitioners challenged section 46 of the Prisons Act on grounds that it discriminated against offenders in the enjoyment of the remission of a third of the sentence imposed. Under the said section 46 certain prisoners including those sentenced to life imprisonment or detention at the President's pleasure were not entitled to remission.

Issue

1. Whether in excluding prisoners that were serving a life sentence or detention at the President's pleasure from benefiting from remission of their sentences, section 46(1)(ii) of the Prisons Act was discriminatory and unconstitutional.

Relevant provisions of the law

Prisons Act (Cap 90), section 46;

(1) Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences.

 Provided that in no case shall -

 (i)  any remission granted result in the release of a prisoner until he has served one calendar month;

 (ii)  any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained during the President's pleasure.

 (2) For the purpose of giving effect to the provisions of subsection (1), each prisoner on admission shall be credited with the full amount for remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.

 (3) A prisoner may lose remission as a result of its forfeiture for an offence against prison discipline, and shall not earn any remission in respect of any period-

 (a) spent in hospital through his own fault; or

 (b) while undergoing confinement as a punishment in a separate cell.

 (4)  A prisoner may be deprived of remission -

 (a)  where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;

 (b)  where the Cabinet Secretary for the time being responsible for Internal security considers that it is in the interests of public security or public order.

 (5) Notwithstanding the provisions of subsection (1) of this section, the Commissioner may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special ground. [Act No. 25 of 2015].

Held

1. Under article 50(2)(p) of the Constitution, every accused person had the right to a fair trial including the right to the benefit of the least severe of the prescribed punishments, if the prescribed punishment for the offence changed between the time of the commission of the offence and the time of sentencing.
2. Section 46(1)(ii) of the Prisons Act, which excluded prisoners sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained at the President's pleasure from remission was inconsistent with article 50(2)(p) of the Constitution on account of being discriminatory. Consequently, the petitioners were entitled to benefit from remission unless they were lawfully excluded under sections 46(3) and 46(4) of the Prisons Act.

Petition allowed.

Cases:None Referred

Statutes

East Africa

1.Prisons Act (cap 90) section 46 – (Interpreted)

2.Constitution of Kenya, 2010 article 50(2)(p) – (Interpreted)

3.Penal code (cap 63) section 296(1) – (Interpreted)

Advocates:None Mentioned