[2022] KEHC 13391 (KLR)

Kilonzo & 3 others v Commissioner General of Prisons & 3 others (Constitutional Petition E022 of 2021) [2022] KEHC 13391 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13391 (KLR)

Republic of Kenya

In the High Court at Machakos

Constitutional Petition E022 of 2021

GV Odunga, J

October 5, 2022

IN THE MATTER OF ARTICLES 10(2)(b),22(1),23(1)&(3)(d),24(1)(d)&(2)(b)(c), 20(1)&(2)&(3)(a), 27, 47, 48, 51(1),159(2)(a),165 (3)(b), (d) (i) (ii), 258(1), 259 (1)(a), (b) & (c) OF THE CONSTITUTION OF KENYA 2010 AND

IN THE MATTER OF SECTION 3 OF COMMUNITY SERVICE ORDER ACT NO. 10 LAWS OF KENYA AND

IN THE MATTER OF SECTIONS 4(1)(b) AND 4(2) OF THE PROBATION OF OFFENDERS ACT CAP. 64 LAWS OF KENYA AND

IN THE MATTER OF CONSIDERATION OF UNITED NATIONS MINIMUM STANDARD RULES FOR THE TREATMENT OF PRISONERS (MANDELA RULES) RULE NO.4(1) AND UNITED NATION MINIMUM STANDARD RULES FOR NON-CUSTODIAL MEASURES (THE TOKYO RULES) PARAGRAPH 2. 1 PROVIDES FOR THE SCOPE OF NON-CUSTODIAL MEASURES TO BE APPLIED TO ALL PERSONS SUBJECT TO PROSECUTION, TRIAL, OR THE EXECUTION OF A SENTENCE, AT ALL STAGES OF ADMINISTRATION OF JUSTICE

AND

IN THE MATTER OF ARTICLE 2(5) &2(6) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF CRIMINAL CASE NO.16 OF 2003 AT MACHAKOS HIGH COURT,AND IN THE MATTER OF CRIMINAL CASE NO.1096 OF 2015 AT MACHAKOS LAW COURT, AND IN THE MATTER OF CRIMINAL APPEAL NO.01 OF 2018 AT MACHAKOS HIGH COURT,AND IN THE MATTER OF CRIMINAL CASE NO.39 OF 2016 AT KITHIMANI LAW COURT,AND IN THE MATTER OF MISCELLANEOUS APPLICATION NO.19 OF 2019 AT MACHAKOS HIGH COURT,AND IN THE MATTER OF CRIMINAL CASE NO.07 OF 2018 AT MAVOKO LAW COURT,AND IN THE MATTER OF CRIMINAL APPEAL NO.132 OF 2018 AT MACHAKOS HIGH COURT.

Between

Mutua Kilonzo

1st Petitioner

Joseph Mutua Mwanthi

2nd Petitioner

Joseph Musyoki Kimuli

3rd Petitioner

Jackline Syombua

4th Petitioner

and

Commissioner General of Prisons

1st Respondent

Director of Public Prosecution

2nd Respondent

Attorney General

3rd Respondent

Probation and After Care Services

4th Respondent

Judgment

1. The Petitioners herein, who are adult persons currently serving their sentences at Machakos Main and Women G.K Prison herein, by this petition seek the following orders:1. A declaration that Section 4 (1)(b) & 4(2) of the Probation of Offenders Act Cap. 64 Laws of Kenya and Section 3 of the Community Service Act, irregardless of the nature of cases, to apply and be read in a manner that complies with the Constitutionof Kenya 2010 and theUnited Nations Minimum Rules for the treatment of prisoners (Mandela Rules)Rule No4(1) and the minimum rules for Non-Custodial Measures (The Tokyo Rules) paragraph 2. 1 which provides for the scope of non-custodial measures to apply to all persons subject to prosecution, trial, or the execution of a sentence, at all stages of administration of justice.2. An order directing the 1st Respondents to consider the Government policy of decongesting prisons.3. Orders directing the 4th Respondent to make a probation and or a Community Service order report for the Petitioners for the non-custodial sentence to be meted.4. Any other order that the court may deem appropriate in the circumstances.

2. According to the Petitioners, in line with chapter 4 of the Constitution, the said provisions should be interpreted to take into consideration the time spent in prison starting from the date the convicted person got into custody. This shall breath life to the provisions and shall enhance effective administration of justice which is in line with the reform processes provided by the Kenya Prison Services and, the Government Policy on decongestion of Prisons.

3. In this petition, the 1st Respondent is the Kenya Prisons service which is the principal implementing agency of the Prisons Act Chapter 90 Laws of Kenya and has a key role in implementing The Persons Deprived of Liberty Act and The Probation of Offenders Act while the 2nd Respondent is the Director of Public Prosecution who draws its mandate from the Constitutionof Kenya 2010 together with the ODPP Act 2013.

4. The 3rd Respondent, the Attorney General is the Principal Legal Advisor of the Government of Kenya and the person authorized by law to represent the Government in proceedings to which it is a party and is named in that capacity.

5. The 4th Respondent, the Probation and After care services, is a government department in the Ministry of Interior and Coordination of National Government, State Department for Correctional Services which provide advisory reports to court and other agencies for the purpose of determining bail and bond terms and for decision-making on sentencing and release of offenders. They also supervise, resettle, reintegrate and rehabilitate offenders serving various non-custodial sentences in the community.

6. According to the Petitioners, they have served a substantial part of their Long sentences and are currently remaining with three years and below to serve their custodial sentences. The 1st petitioner, it was pleaded, was arrested and charged for Murder in Cr Case No16 of 2003 at Machakos High Court and was sentenced to suffer death that was later commuted to life imprisonment. Upon seeking resentence, his sentence was reduced to 35 years and he currently remains with two years to serve in custody. The 2nd Petitioner was charged with the offence of Robbery with Violence in Cr Case No1096 of 2015 and was sentenced to serve 15 years and upon his appeal, his sentence was reduced to serve 14 years and is currently remaining with less than two years from his date of arrest. The 3rd Petitioner was charged with the offence of Attempted Defilement and sentenced to serve 10 years vide Cr Case No39 of 2016. Upon seeking resentence, it was directed that his time spent in remand custody factored in his sentence. As such, he is currently remaining with less than two years to serve. The 4th Petitioner was arrested and charged with the offence of Sexual Assault and sentenced to serve for 10 years which sentence was upheld on appeal but she has two years left to serve.

7. This petition, according to the petitioners, is brought on behalf of the petitioners and on behalf of those other convicts facing the same challenge as people who are serving various long sentences and have served part of the sentences thereby remaining with three years and below. According to the petitioners, the petition is brought pursuant to Section 3(1)(b) of the Community Service Order Actand Section 4 (2) of the Probation of Offenders Act.

8. According to the petitioners, in line with Articles 27 & 10(2)(b), Section 4(1)(b) & 4(2) of the Probation of Offenders Act and Section 3 of The Community Service Act ought to be read in a manner that comply with the Constitution and Rule No4(1) of theUnited Nations Minimum Rules for Treatment of Prisoners (Mandela Rules) and paragraph 2. 1 of the Minimum Rules for Non-Custodial Measures (The Tokyo Rules) which provides for the scope of non-custodial measures to apply to all persons subject to prosecution, trial, or the execution of a sentence, at all stages of administration of justice.

9. In his petition, the petitioners contend that they have a right to institute court proceedings in their own capacity and on behalf of all other prisoners whose constitutional rights and freedoms are at a threat of being violated ad that this court has authority to uphold and enforce the Bill of Rights and grant reliefs provided under Article 23, 24 and 27 of the Constitution.

10. It is the Petitioners’ case that just like any other citizen, they and other prisoners in the same situation have a right to equal protection and equal benefit of the law regardless of their cases and that they are petitioning this court in good faith to protect their rights and freedoms and of all other prisoners whose constitutional rights and freedoms have been deprived.

11. In response to the petition, the 1st, 3rd and 4th Respondents herein relied on an affidavit sworn by Mary Mbau the Secretary, Probation & Aftercare Service in the State Department of Correctional Service, in which it was deposed that this court lacks jurisdiction to entertain the instant Notice of Motion and Petition as they seeks to usurp the legislature’s prerogative powers to institute laws.

12. It was averred that Section 3 of the Community Service Act No 10 of 1998 and sections 4(1) (b) and 4(2) of the Probation of Offenders Act Cap. 64 provide for non-custodial sentences that apply at the first instance of sentencing or re-sentencing where applicable and cannot be construed to apply where custodial sentences have already been given.

13. In her view, section 3 of the Community Service Act provides for the instances where courts can apply community service orders and must be read and understood in the mandatory terms to mean that said service orders will be granted to persons convicted and sentenced to a term of three years or less. According to her, Section 4 of the Probation of Offenders Act provides for the instances where courts can issue probation orders, namely, where a person is convicted but the court feels due to youth, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed or enter into recognizance, with or without sureties, in such sum as the court may deem fit.

14. The deponent also cited sections 7. 18 to 9. 13 of the Judicial Service Act Sentencing Guidelines No 1 of 2011 which provides policy guidelines and directions for the implementation of non-custodial orders where applicable and is meant to be the guiding authority on courts in sentencing of offenders in the first instance.

15. It was the deponent’s averment that the Acts were enacted in line with the spirit and form of the provisions of the Minimum Standard Rules of the Treatment of Prisoners and United Nation Minimum Standard Rules for Non-Custodial Measures in mind and are meant as an aid to the courts when sentencing offenders in the first instance. She averred that the Kenyan Penal Code does not have any provisions for the combination of non-custodial and custodial sentences to be applied concurrently to offenders who have been given custodial sentences and therefore it is impossible to apply the said Acts on offenders who have served a majority of their custodial sentences.

16. She was of the view that it is only during a resentencing hearing that the High court would have the opportunity to apply the provisions of the said Acts to offenders who meet the threshold for grant of either the community service orders or probation orders as may be warranted. In her opinion, the Acts in question are been misconstrued by the petitioners in so far as suggesting that they provide an automatic review of custodial sentences as they are advocating an offender’s prison release system that does not exist in the current criminal legal system of Kenya.

17. The deponent therefore averred that the prayers sought by the petitioners are untenable as it would amount to this court usurping the jurisdictive mandate of the legislature in enacting new law and falls afoul of the principle of separation powers.

18. It was deposed that the Probation of Offenders Act and the Community Service Act do not provide limitations on the rights of sentenced offenders but as they are non-custodial sentencing the Acts set out the grounds for suitability of offenders who are eligible for such orders thereunder. She averred that the Acts are meant to help the courts in assessing the eligibility of the offender before giving the custodial sentence on the offender who fall within the ambit of the said Acts by ensuring they met the criteria as set out in the Acts, namely, the type of offence, character and circumstances of the offence. She further deposed that contrary to the averments by the petitioners, the Acts are very specific in ensuring that the suitable offenders will be given every opportunity to benefit from the provisions of the two Acts; therefore, offenders that fail to qualify to be sentenced under the two Acts cannot be released unless under the sentence review process provided under the Community Service Order Act.

19. Based on legal advice, the deponent stated that while the Constitution does provide for the rights of imprisoned and detained persons, it must be read holistically to include the rights of others and the public safety into account thus guidelines have been enacted by the courts and National committee to identify the suitable offenders who qualify for review and in which circumstances can apply the provisions of the Acts.

20. It was averred that those offenders who seek for review of sentences under section 8(2) of the Community Service Order Actare those who have committed serious crimes and if released before the expiry of their sentences, the safety of the public, victim(s) and offender must be ascertained for harmonious coexistence and successful integration; a delicate and elaborate background check and preparations has to be undertaken hence these provisions cannot be accorded without caution.

21. That I know of my knowledge that the petitioners are seeking to advance a concept of non-custodial sentencing that is unknown under the current Kenyan legal system as what the petitioners have envisioned is a situation where offenders are eligible for early release under the parole system; such system is not applicable under the two Acts as it would require a comprehensive law and structures to be enacted to give guideline and policy on the requirements courts or enabling committee to consider when considering the offender’s application for early release.

22. In her view, the petitioners alleged violation or threatened violation of the Constitution but did not buttress the manner or evidence of violation or the loss/damage suffered or likely to be suffered. It was her case that it is not true that the Petitioners’ right to fair administrative action was violated as no evidence of the same was availed. In any event:i.The manner and conduct of any sentencing process is clearly set out under the Criminal Penal Code, Judicial Service Act Sentencing Guidelines, Probation of Offenders Act and Community Service Order Act and cannot be applied blankly to all offenders.ii.In any event, the petitioners have failed to demonstrate by way of fact or evidence that their sentences were tainted with any form of irregularity nor have they have they applied for review of their sentences as is their right.iii.The respondents acted lawfully, reasonably and fairly in the circumstances and public interests militate towards the action taken.iv.It is not true that the respondents breached Article 27, 48 and 51 of Constitution.v.The Petitioners have not demonstrated that their sentenced were illegal or improperly issued nor that the courts failed to apply the provisions of the Acts, applied wrong principle or omitted irrelevant factors or proceedings were irregular or in violation of their fundamental freedoms when sentencing but have merely given general reasons for the court to take into account and apply the Acts to release them.vi.There is no evidence on record that the petitioners have applied for review of their sentencing by the High Courts to warrant the court to exercise its discretion to interfere with their sentences.vii.It should be noted that the Acts are in relation to non-custodial sentences are only applicable at the first instance of sentencing or at sentence review as provided in section 8 (2) of the Community Service Order Act.

23. In the circumstances, it was contended that no evidence has been led to suggest that the respondents violated any of the cited constitutional and statutory provisions and the prayers sought are unwarranted as is mere fallacy and meant to advance the personal interests of the petitioners.

24. Based on legal advice, it was averred that the Petition does not satisfy the threshold set out in Anarita Karimi Njeru -v- Republic(1976-1980) KLR 1272 and Mumo Matemu -v- Trusted Society of Human Rights Alliance & Others (2013) eKLR as it does not raise any valid constitutional grounds, prayers or issues to warrant intervention and the balance of convenience, public interest and scale of justice militate and tilt against granting reliefs sought in the Petition.

25. In the premises the court was urged to decline to issue the orders sought and dismiss the Petition with costs.

Determination 26. I have considered the issues raised hereinabove.

27. It is clear that this petition revolves around the interpretation and application of Section 3(1)(b) of the Community Service Order Act and Section 4(2) of the Probation of Offenders Act.

28. Section 3(1)(b) of the Community Service Order Act provides as follows:(1)Where any person is convicted of an offence punishable with—(a)imprisonment for a term not exceeding three years, with or without the option of a fine; or(b)imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate,the court may, subject to this Act, make a community service order requiring the offender to perform community service.

29. It is clear that for a person to benefit under the said provision the person must be a convict whose imprisonment is for a term not exceeding three years, with or without the option of a fine; or must be a person who, though his imprisonment is for a term exceeding three years, the trial court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate. In other words, for the Court to place a person on community service, he must have been convicted of not more than 3 years with or without a fine or the Court must determine that a punishment of three years would have been appropriate.

30. Section 4 of the Probation of Offenders Act on the other hand, provides as follows;(1)Where a person is charged with an offence which is triable by a subordinate court and the court thinks that the charge is proved but is of the opinion that, having regard to youth, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may— (a) convict the offender and make a probation order; or (b) without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognisance, with or without sureties, in such sum as the court may deem fit.(2)Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the youth, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which, the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognisance, with or without sureties, in such sum as the court may deem fit.

31. From this provision what comes out is that the Court has power to place a person on probation. The Magistrate’s Court may exercise this power either upon conviction or without conviction if he thinks that the charge is proved. The High Court, however, may only exercise the power upon conviction.

32. In this petition, the Petitioners’ case is that notwithstanding the fact that a convict may not have been placed on probation at the time of the sentencing, the Court should still be at liberty to consider doing so where the convict has served a substantial part of the sentence by taking into account the period already served and the character of the convict whether he has reformed or not.

33. In order to determine this petition one ought to consider the objectives of the two Acts of Parliament. According to the preamble of the Community Service Orders Act, it is provided that it is:An Act of Parliament to introduce and regulate community service by offenders in certain cases, and for connected and incidental purposes.

34. It is clear that the legislature, in its wisdom identified cases that could benefit from such orders. A reading of the section cited above clearly reveals that such must be cases where the trial Court or the Court exercising the powers of the trial court such as in cases of resentencing determines that prior to the stage of sentencing or at the stage of sentencing, the convict ought to benefit from the said orders.

35. What the Petitioners are seeking from the Court is akin to parole system. Such a system is not available in this country in the form in which it is exercised in other jurisdictions. In this country one only benefits from remission or upon the exercise of Power of Mercy by the President. It was therefore noted in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR that:“Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature…We therefore recommend that Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. We are of the view that such proposed legislation will enable us to comply with Articles 2(6) of the Constitution which states that any treaty or convention ratified by Kenya shall form part of the law of Kenya.”

36. Article 133 (1) of the Constitutionprovides that:On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—“(a) granting a free or conditional pardon to a person convicted of an offence;

37. Though the Constitution provides for an Advisory Committee on the Power of Mercy, its mode of operation is not clearly defined. In absence of clearly defined parameters and how it conducts its proceedings, I agree with the petitioners that the option of power of mercy as currently established may well fail to meet certain constitutional principles. However, it falls upon the legislature to formulate a proper instrument guiding the exercise of that power. Sentencing of offenders being a judicial function, the role of the executive if at all must be properly defined and must meet the constitutional dictates. It cannot be left to the President to decide when and to whose benefit the exercise of power of mercy will inure.

38. I however find nothing wrong with the trial court imposing both custodial and non-custodial sentences. This may occur in cases where the Court feels that in light of the offence committed, a custodial sentence may not necessarily meet the objectives of sentencing and that in order to rehabilitate the offender a non-custodial sentence is necessary as well. Accordingly, I find nothing wrong with sentencing an offender to a specific sentence and directing that upon completion of the said sentence, the offender serves a non-custodial sentence for a specific period.

39. However, having considered this petition I find that whereas there is a need for legislative reforms in the penitentiary department, such reforms ought to be initiate by then legislature and not the judiciary. To grant the orders sought in this petition would amount to this Court usurping the powers of the legislature. In the words of the words of Ackermann, J in the South African case of National Coalition for Gay and Lesbian Equality & Others 13 Others, Case CCT No 10/99:“the other consideration a court must keep in mind, is the principle of the separation of powers and, flowing therefrom, the deference it owes to the legislature in devising a remedy for a breach of the Constitution in any particular case. It is not possible to formulate in general terms what such deference must embrace, for this depends on the facts and circumstances of each case. In essence, however, it involves restraint by the courts in not trespassing onto that part of the legislative field which has been reserved by the Constitution, and for good reason, to the legislature.”

40. In addition, in Patrick Ouma Onyango & 12 Others vs. Attorney General and 2 Others[2005] eKLR, in which the court dealt with the issue of whether it should interfere with a political or legislative process and held that:“The answer the court gives to this question is that whatever the technicalities or the legal theory, sound constitutional law must be founded on the bedrock of common sense and the courts must now and in the future appreciate the limitations on formulation of policy, legislative process and practical politics because the courts are ill equipped to handle such matters.”

41. Similarly, in Blackburn vs. Attorney General[1971] 1 WLR 1037, Salmon L.J held that;“Whilst I recognise the undoubted sincerity of Mr. Blackburn’s views I deprecate litigation the purpose of which is to influence political decisions. Such decisions have nothing to do with the courts. These courts are concerned only with the effect of such decisions if and when they have been implemented by legislation. Nor have the courts any power to interfere with the treaty-making power of the sovereign. As to Parliament, in the present state of the law it can enact, amend and repeal any legislation it pleases. The role and power of the court is to decide and enforce what is the law and not what it should be now or in the future”.

42. Having considered the issues raised in this petition, I have no merit in this petition which I hereby dismiss.

43. Judgement accordingly.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: