Bisaso v Republic (Criminal Petition E028 of 2025) [2026] KEHC 7551 (KLR) (4 June 2026) (Judgment)

Bisaso v Republic (Criminal Petition E028 of 2025) [2026] KEHC 7551 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7551 (KLR) Republic of Kenya In the High Court at Kibera Criminal Petition E028 of 2025 DR Kavedza, J June 4, 2026 Between Ann Birungi Bisaso Petitioner and Republic Respondent Judgment 1.The petitioner was jointly charged and convicted, together with another person not before this court, of the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. She was initially sentenced to life imprisonment and a fine of Kshs. 254,893,200/=. Upon review, the sentence was reduced to thirty (30) years' imprisonment and a fine of Kshs. 254,893,200/=. in default of which she was to serve one (1) year imprisonment. 2.The petitioner has now moved this court by way of a constitutional petition seeking re-sentencing. She alleges violations of her rights under articles 27, 28, 48 and 50 of the Constitution. She states that she has served approximately fifteen (15) years of her custodial sentence and contends that her continued incarceration is discriminatory, given that her co-accused, John Mugisha, who was convicted and sentenced in the same proceedings, was released in 2023. She further asserts that she was denied an opportunity to have her sentence reviewed, thereby infringing her right to a fair trial. According to the petitioner, her continued imprisonment has occasioned psychological distress, stigma and undue suffering. 3.The petition is principally founded on allegations of unequal treatment, denial of access to sentence review mechanisms and infringement of fair trial rights. However, the mere fact that a co-convict was released does not, without more, establish discrimination under article 27. The petitioner must demonstrate that both offenders were similarly situated and that there existed no lawful or factual basis for the differential treatment. Equally, the alleged denial of sentence review must be supported by evidence showing that she was denied a legal remedy available to her. The court must therefore determine whether the petitioner has established any constitutional violation warranting interference with the sentence lawfully imposed by the trial court. 4.It is not disputed that the petitioner and her co-accused were jointly charged, tried and convicted in the same criminal proceedings for the same offence. The record further shows that the co-accused was subsequently released in 2023. From the record, there is no distinction in their respective circumstances. 5.Article 27(1) of the Constitution on equality and freedom from discrimination provides that:(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law. 6.Further, clause 1.2.2 of the Sentencing Guidelines (2023) lay out the principles underpinning the sentencing process as follows: -i……………….ii.Equality/Uniformity/Parity/Consistency/Impartiality: The same sentences should be imposed for same offences committed by offenders in similar circumstances.iii...... 7.The record shows that the petitioner and her co-accused were jointly charged, tried and convicted of the same offence of trafficking in narcotic drugs. The co-accused subsequently benefitted from a review of sentence and was released in 2023. The petitioner, however, continues to serve her sentence despite having been convicted in the same proceedings and for the same offence. The principle of parity in sentencing is well recognised. Clause 1.2.2 of the Sentencing Policy Guidelines, 2023 provides that:“The same sentences should be imposed for same offences committed by offenders in similar circumstances.” 8.Similarly, the Judiciary Criminal Procedure Bench Book, 2018 states at page 117 paragraph 28 that:“If two or more people have been convicted of the same offence, there should be no disparity in the sentences imposed without good reasons. If the court does impose disparate sentences, it should state its reasons on record.” 9.The law nevertheless recognises that disparity in sentencing may be justified where there are material differences between offenders. In Walter Marando vs. Republic [1980] eKLR, the court recognised that a distinction may be warranted where, for example, one offender has a previous criminal record. Likewise, in R vs. Ball (1951) 35 Cr App Rep 164, 166, cited with approval in Walter Marando vs. Republic [1980] eKLR, Hilbery, J stated:“The differentiation in treatment is justified if the Court, in considering the public interest, has regard to the differences in the characters and antecedents of the two convicted men and discriminates between them because of those differences.” 10.In Luka Kingori Kithinji and Another vs. R Nyeri Criminal Appeal No. 130 of 2010 [2011] eKLR, the court further held that disparity in sentencing may be justified where the offenders played different roles in the commission of the offence. The court stated:“In this case, the co-accused were committed to a Borstal Institution for 3 years for the reason that they were child offenders. The two appellants were adults. The 2nd appellant as guardian of the deceased during circumcision should have protected the deceased. The two being adults should have protected the deceased and also dissuaded the co-accused from assaulting the deceased. In our view, a slight disparity in sentencing is for that reason, justified. The appellants were in custody for one year before they were sentenced.” 11.In the present case, no material has been placed before this court to demonstrate any distinction between the petitioner and her co-accused in terms of their participation in the offence, culpability, antecedents, criminal record, or any other relevant sentencing consideration. Both were convicted in the same trial for the same offence. There is therefore no discernible basis upon which one offender should continue serving a custodial sentence while the other has already secured his release. To uphold such differential treatment would offend the principle of parity in sentencing and violate article 27(1) of the Constitution, which guarantees equality before the law and equal protection and benefit of the law. 12.I am therefore satisfied that the petitioner has established a violation of her right to equal treatment before the law. In the unique circumstances of this case, and bearing in mind that her co-convict has already been released, it would serve no useful purpose to remit the matter for a fresh resentencing hearing. 13.Accordingly, the petition is allowed and the petitioner's sentence is hereby deemed served. She shall be released forthwith unless otherwise lawfully held. However, being a Ugandan Citizen, the petitioner shall be released and deported to her country of origin, Uganda. The Ugandan High Commission shall bear the costs of her deportation.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.D. KAVEDZAJUDGEIn the presence of:Kamau Waweru for the Applicant.Mutuma for the Respondent.Karimi - Court Assistant.