[2023] KEHC 25433 (KLR)

Kilonzo & another v Commissiner General of Prisons & 3 others (Criminal Petition 1 of 2022) [2023] KEHC 25433 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25433 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Petition 1 of 2022

TM Matheka, J

November 10, 2023

IN THE MATTER OF ART 22(1) , 23(1), (3), (d), 24(1) (d), (2) (a)(b)(c), 25(a) 20(1)(2)(3)(a), 47, 48, 51(1), 52, 159, 165(3) (d) (ii), 258(1) & (ii), 259(1) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 3(b) OF COMMUNTIY SERVICE OF ORDER ACT.NO. 10 LAWs OF KENYA AND IN THE MATTER OF SECTION 3 AND 4(b), OF THE PROBATION OF OFFENDERS ACAT CAP 64. LAW OF KENYA AND IN THE MATTER OF CR. CASE NO. 561/2014

Between

Nichodemus Musyoki Kilonzo

1st Petitioner

Julius Nzomo David

2nd Petitioner

and

Commissiner General of Prisons

1st Respondent

Director Public Prosecution

2nd Respondent

Attorney General

3rd Respondent

Probation After Care Service

4th Respondent

Judgment

1. The two petitioners filed this petition on 4th May 2022 - together with three others who withdrew from the Petition before the hearing.

2. The petition is brought under Articles 22(1) 23(1) (3) (d) , 24(1) (d), 2(a) (b) (c) 25(a), 20(1), (2) (3) (a) , 47, 48, 51(1) 52, 159, 165(3) (ii), 258(i), (ii), 259(i) of the Constitution of Kenya, Section 3(b) of the Community Service Orders Act No. 10 of Laws of Kenya (sic) Section 3 and 4(b) of the Probation of Offenders Act Cap 64 Laws of Kenya and the CR Case no. 561/2014.

3. The petitioners contend that Section 3 of the Probation Offenders Act provides for time spend but does not restrict the time spend to the time spend while serving sentence in a prison - that it should be interpreted to mean time spend from the time one enters prison in line with Section 333 of the Criminal Procedure Code.

4. It is the position of Francis Maundu Mateli that he was sentenced to 10 years imprisonment. That he filed a Miscellaneous Application and his sentence was reduced - and by the time he filed this petition he was remaining with 2 years and 11 months in prison.

5. Julius Nzomo Daudi says, he was sentenced to 10 years imprisonment and 2 years on probation. He says, he is in similar situation as Francis.

6. The petitioners cites Section 3 of the Probation of Offenders Act - but the quote clearly shows - they mean Section 3 of the Community Service Orders Act –which states;1. Where any person convicted of an offence punishable witha.…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 fine, to be appropriate, the court may subject to this Act, make a community service order requiring the offender to perform community service.”

7. The petitioners quote Section 4(2) of the Probation of Offenders Act (Cap 64)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 recognizance, with or without sureties, in such sum as the court may deem fit.

8. They also quote Section 333(2) of the Criminal Procedure Code which statesSubject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody

9. They then seek the prayers ;1. a declaration that Section 3 of the Probation of Offenders Act be read to include the period spent in prison custody.2. an order directing the 1st respondent to consider the government policy of decongesting prisons and give evidence of the prison population before Covid 19 pandemic and at the moment as justification of Persons Deprived of Liberty Act 2014 which may not be easily implemented without a reduced number of inmates.3. An order directing sentences to start running from the time of arrest to the date of determination of this petition as prescribed under Section 333(2) of the Criminal Procedure Code.2. Orders directing Probation Officers to make a probation officer’s report for the petitioner for appropriate sentence to be meted.3. Any other order the court may deem appropriate in the circumstances.

10. In the supporting affidavit it is deponed that this court has powers to breathe life into any Act of permanent. The petitioners request the court to declare Section 3 and 4(2) of the Probation of Offenders Act to mean time spent in prison and to be considered for probation report respectively. It is their position that Section 3 of the Cap 64 “ is not conclusive and thereby not in tandem with the spirit of the Constitution under Article 25 , 50(2) , 27, 29 Laws of Kenya.”

11. Annexed to the affidavit is a table showing the achievement made by the petitioners in the time they have been in prison - Francis has a certificate in welding and “mechanicals” Julius has done the course prisoners’ journey discipleship.

12. The ODPP filed grounds of opposition dated 30th March 2023 to the effect that the petitioner’s appeals had been heard and determined by the High Court, and thus it lacks jurisdiction to hear and determine the petition, that their sentences were subsequently reduced following Miscellaneous Applications they filed, that the courts that convicted them, found them unfit for non- custodial sentences, that the petitioners have failed to demonstrate that their constitutional rights have been infringed by the respondents. That both of them are serving legal sentences confirmed by this court on appeal.

13. The petitioners filed their submissions on 12th April 2023. It is argued for the petitioners that the petition is brought pursuant to Section 333(2) of Criminal Procedure Code and Sections 3 & 4 of the Community Service Orders Act, and section 3 of the Probation of Offenders Act Cap 64 LoK , that every person is equal before the law and has the right to equal protection of the law; That some courts have held that even inmates who were out on bond could benefit from Section 333(2) of the Criminal Procedure Code and referred the court to wilson masese mwololo v r and those who have been in remand see mohamed abddul fadhi v r - bethwel wilson kibor v r (court of appeal) eldoret cr appeal no. 78/2009

14. It is also argued that Section 333(2) does not specify how the court is to take account of the time in custody . That the provision does not require a prisoner to make any application in order for the court to make determination on that issue - that it is a benefit that should be accorded a prisoner without any application - and does not require any challenge from the prosecution.

15. Further having served most of the sentence in custody and remaining with less than three years to go - the petitioners argue that they are suitable for a non - custodial sentence and that Section 3 of the Community Service Orders Act ought to be applied to them.

16. During the hearing of the petition, Francis told the court that his petition was simply to seek that the time they had spent in prison be considered and they be considered for a non – custodial sentence . That he was in remand custody for 8 months, arrested on 5th August 2017, convicted and sentenced on 5th April 2018 – to serve 10 years and 6 months imprisonment for defilement.

17. Julius told the court that he was imprisoned on 8th April 2018. He was arrested on 4th August 2018 and pleaded guilty and was sentenced to 10 years custodial , 2 years’ probation for the offence of causing grievous harm.

18. In response, Ms. Nyakibia for the state submitted that the petitioners had not come to court as of right . That they had not demonstrated that any of their rights had been infringed.

19. The 1st petitioner responded that he was indeed a human being with rights. That’s true he had committed an offence he had spent time in prison - and the fact that he had committed an offence once did not mean that he would always be like that. That he sought the courts mercy to give him a noncustodial sentence.There was no response from Probation After and Care Services, the Inspector General of Prisons or the Office of Attorney General.

20. The issues that arise for determination are whether the petitioners have established the infringement of their constitutional rights; whether the term ‘to take into account’ in s 333(2) of the Penal Code has been defined and whether offenders must bring an application for the same to be applied, whether Community Service Act and Probation of Offenders Act ought to apply automatically to offenders whose terms of imprisonment are three years and below;

21. I have anxiously considered the petition and what comes through is that this is an application for review of the petitioners remainder of their sentences in custody to noncustodial sentences. To that end - I find that this petition does not meet the threshold of a constitutional petition –(see Anarita Karimi)

22. However, it is evident that the petitioners raise the important issue of the application of Section 3 of the Community Service Order Act - and whether it should apply as of right on prisoners whose remaining prison sentences are below three years. In addition - they raise the other important issue whether Section 333(2) Criminal Procedure Code applies automatically and whether a prisoner must go through the process of making an application.

23. Section 333(2) provides:-Subject to the provisions of Section 38 of the Penal Code every sentence shall be deemed to commence from and include the whole of the date on which it was pronounced except where otherwise provided by this code.Provided that where the person sentenced under subsection (1) has , prior to such sentence been held in custody , the sentence shall take account of the period spend in custody.

24. Section 38 of the Penal Code States38. Sentence on escaped convictWhen sentence is passed under this Code on an escaped convict, that sentence—(a)if of death, or fine, shall, subject to the provisions of this Code, take effect immediately;(b)if of imprisonment, shall run consecutively or concurrently, as the court shall order, with the unexpired portion of the sentence which the convict was undergoing when he escaped.

25. The meaning of taking into account has been discussed in various decisions. The Court of Appeal in Ahmad Abolfathi Mohammed & Another Criminal Appeal No.135 of 2016 (2018)eKLR held thus:“By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person.” (emphasis added)

26. Across the border the Learned Justices of the Supreme Court of Uganda in Bukenya v Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013) stated that;“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement.

27. My understanding is that the requirement to take into account is mandatory. The manner of taking account could be purely mathematical where the court states that the period to be served is so many years to begin from the date of incarceration. It is also a matter of exercise of discretion in sentencing and for the trial court to indicating that the period spent in remand custody has been considered in the totality of the term of imprisonment imposed.

28. It is therefore not correct that there is no guidance on what to ‘tak into account’ means in s. 333(2) of the Penal Code.

29. I agree with the submission that the section of the law requires that the trail court must take that into account and indicate so. In the event that that is not done then the offender has a right to seek revision of his sentence in the superior court.4. With regard to the provisions of the Community Service Orders Act and the Probation of Offenders Act: the s. 3 (b) of the Community Service Orders Act States’ Where any person convicted of an offence punishable witha.…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 fine, to be appropriate, the court may subject to this Act, make a community service order requiring the offender to perform community service.”

30. In my view a reading of the section indicates that it was intended to give the trial court the choice of imposing a non-custodial sentence to every person whose sentence ends up being three years and below. In fact this provision was intended to ensure the decongestion of the prisons by not sending those offenders to prison by placing the on community service. It was not intended for the automatic application to persons already serving sentence, unless their sentences are altered on revision or appeal. This also applies to s. 4 of the Probation of Offenders Act with respect to the Probation order. The same is intended for first offenders and only upon the recommendation of a probation officer, It is not envisioned that it would be of automatic application to the persons already serving sentence.

31. The petitioners argue that the only way the Persons Deprived of Liberty Act No. 23 of 2014 can be effective is only if these two provisions apply automatically to decongest the prisons, However as I have indicated therein above the trial court is obligated in view of Article 159 of the Constitution take into consideration the available non-custodial sentencing options before imposing a term of imprisonment in appropriate cases.

32. Finally, it is my view that the petitioner has not established the grounds to warrant the orders sought. The Petition is dismissed with no orders as to costs.

DATED SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER 2023MUMBUA T. MATHEKAJUDGECA MWIWAPetitionersFor state - Kazungu