[2021] KEHC 293 (KLR)
The court found that indeterminate sentences, such as those imposed under 'president's pleasure', are unconstitutional based on prevailing jurisprudence. Given that the petitioner had already served 20 years in custody (5 years pending trial and 15 years post-conviction), and in light of favourable re-sentencing and...
Source-derived case information.
- Citation
- [2021] KEHC 293 (KLR)
- Parties
- Petitioner: LHC; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 151 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; sentence reduced to period served; petitioner to be released forthwith unless otherwise lawfully held.
- Judges
- JM Mativo
- Legal Topics
- Indeterminate Sentences, Unsound Mind Defence, Resentencing, President Pleasure Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
LHC
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the imposition of an indeterminate sentence under 'president's pleasure' is constitutional.
- 2 Whether the petitioner, having been of unsound mind at the time of the offence, is entitled to resentencing after serving 20 years in custody.
Ratio Decidendi
The court found that indeterminate sentences, such as those imposed under 'president's pleasure', are unconstitutional based on prevailing jurisprudence. Given that the petitioner had already served 20 years in custody (5 years pending trial and 15 years post-conviction), and in light of favourable re-sentencing and socio-inquiry reports, the court determined that the appropriate remedy was to reduce the sentence to the period already served. The court ordered the immediate release of the petitioner unless otherwise lawfully held, emphasizing that if the sentence were being imposed today, an indeterminate sentence would not be constitutional.
Court Disposition
petition allowed; sentence reduced to period served; petitioner to be released forthwith unless otherwise lawfully held.
Orders
- The sentence imposed upon the petitioner is reduced to the period served in jail.
- The petitioner, Mr. LHC, is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
17 paragraphs
LHC v Director of Public Prosecutions (Constitutional Petition 151 of 2019) [2021] KEHC 293 (KLR) (15 November 2021) (Judgment)
Neutral citation number: [2021] KEHC 293 (KLR)
Republic of Kenya
In the High Court at Mombasa
Constitutional Petition 151 of 2019
JM Mativo, J
November 15, 2021
Between
LHC
Petitioner
and
Director of Public Prosecutions
Respondent
Judgment
1. The Petitioner is said to have been of unsound mind at the time of the commission of the offence. Upon being convicted he was sentenced to serve under president’s pleasure. For starters, indeterminate sentences have been held to be unconstitutional in several cases in the country. Such that if this sentence was being meted today, I doubt whether the court could have imposed an indeterminate sentence.
2. The Petitioner is said to have been in prison for 20 years (5 years in custody pending trial and 15 years in prison). The Re-sentencing report/socio-inquiry reports are favourable. The prosecution is not opposed to the court Re-sentencing the Petitioner. Taking into account the peculiar circumstances of this case and the said reports and period the Petitioner has been incarcerated, I reduce the sentence imposed upon the Petitioner to the period served in jail. I order that he (the Petitioner Mr. LHC) be released forthwith unless otherwise lawfully held.
DATED, DATED AND DELIVERED IN MOMBASA VIRTUALLY THIS 15TH DAY OF NOVEMBER 2021. JOHN M. MATIVOJUDGE