[2019] KEHC 3101 (KLR)
The court held that the applicant's sentence of 15 years imprisonment commenced from the date of the High Court's decision on 5th August, 2014, not from the date of the lower court's decision. As such, the applicant had not yet served one third of his sentence as required under Section 46 of the Prisons Act to...
Source-derived case information.
- Citation
- [2019] KEHC 3101 (KLR)
- Parties
- Applicant: Mark Wasike Simiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 80 of 2018
- Procedural Posture
- Miscellaneous Criminal Appeal / Ruling on Application for Release After Serving Part of Sentence
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Incest Offence, Sentencing Principles, Prison Act Section 46, Sentence Commencement, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Wasike Simiyu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Appeal / Ruling on Application for Release After Serving Part of Sentence
Legal Issues
- 1 Whether the applicant is entitled to release after serving one third of his sentence under Section 46 of the Prisons Act.
- 2 Whether the sentence should be computed from the date of the High Court decision or the lower court's decision.
Ratio Decidendi
The court held that the applicant's sentence of 15 years imprisonment commenced from the date of the High Court's decision on 5th August, 2014, not from the date of the lower court's decision. As such, the applicant had not yet served one third of his sentence as required under Section 46 of the Prisons Act to qualify for release. The court further clarified that it retains jurisdiction to interpret and apply Section 46 where prison authorities fail to do so, but in this case, the applicant's computation was premature. The application was therefore disallowed, and the applicant was advised to compute the period in conjunction with the prison authorities as mandated by law.
Court Disposition
application dismissed
Orders
- The application for release is disallowed.
- The applicant should compute the sentence period in conjunction with the prison authorities as mandated by the Act.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISCELLENEOUS CRIMINAL APPEAL NO. 80 OF 2018
MARK WASIKE SIMIYU .................................APPLICANT
VERSES
REPUBLIC …................................................ RESPONDENT
RULING
1. The Applicant had been charged with the offence of Incest contrary to section 20(1) of the sexual offences Act.He was initially sentenced to life imprisonment which was later reduced to 15 years on appeal.
2. The Applicant file the supplication dated 11th July, 2018 seeking to be released on the ground that he has served a 1/3 of the sentenced. The learned state counsel opposed the same on the grounds that it was an abuse of the court process and went contrary to the provision of Section 46 of the Prisons Act.
3. The court then ordered a probation report which was filed on the 28th January, 2019. The same seems favourable to the Applicant.
4. I have also perused the judgment of this court dated 5th August, 2014. The same reduced the sentence from life imprisonment to 15 years imprisonment. The said 15 years was to run from the date of the high court decision and not from the period of the lower court’s decision.
5. Contrary to the position taken by the Respondent in his preliminary objection, this court has the capacity to decipher the contents of Section 46 of the Prison Act. The provisions are clear and in the event that the prison authorities do not interpret and apply the same this court can be moved just like the applicant has done.
6. The Applicant’s period of sentence runs from 5th August, 2014 for the next 15 years. Can it therefore be said that he has served a third of the sentence? I do not think so. If he had done so then the prison authorities would have acted on their mandate as provided by the provisions of section 46 of the Act.
7. Secondly, it would have been possible if the appellate court would have decided that the 15 years period run from the date of the lower court’s decision. As it is the period run from the date of this court decision on appeal.
8. For the foregoing reasons the application is disallowed. The Applicant in any event should compute in conjunction with the prison authorities the period as mandated by the Act and I in doubt this court can be moved.
Dated signed and delivered in open court at Kitale this 7th day of August, 2019.
_____________________
H. K. CHEMITEI
JUDGE
7/8/19
In the presence of:-
Mr Omoria for State
Applicant Present
Court Assistant – Kirong
Ruling read in open court