https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8004

Republic v Cabinet Secretary Ministry of Interior & National Administration & 3 others; Ali (Ex parte Applicant) (Criminal Miscellaneous Application 205 of 2025) [2026] KEHC 8004 (KLR) (Crim) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 8004 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Miscellaneous Application 205 of 2025 MW Muigai, J May 28, 2026 Between Republic Prosecution and Cabinet Secretary Ministry Of Interior & National Administration 1st Respondent Director of Public Prosecutions 2nd Respondent Attorney General 3rd Respondent Commissioner Of Prisons 4th Respondent and Mohammed Ali Ex parte Applicant Judgment Background 1.The Appellant /Applicant filed Judicial Review Application in Constitutional & Judicial Review Division and by Judgment delivered on 25/7/2025 Hon. J.Chigiti transferred the matter to Criminal Division. 2.The Appellant/Applicant was arrested on 29/4/2016 and charged on 3/5/2016 under the Prevention of Terrorism Act (POTA) in CM Milimani Criminal Case no 835 of 2016. After trial, Judgment was delivered by Hon Chief Magistrate M Mutuku (as she then was) on 12/4/2024 and sentencing on 22/4/2024, the Appellant/Applicant was sentenced to serve 12 years imprisonment. 3.The Appellant filed appeal Criminal Appeal E047 of 2024 and the State/Office of Director of Public Prosecution (ODPP) filed Criminal Appeal E046 of 2024.The State/ODPP filed High Court Criminal Misc Application 191/2025, Presiding Judge Hon K. Kimondo closed the file as the Misc application ought to have been filed in Criminal Appeal E047 of 2024. 4.The Court proceedings of 16/4/2026 and 20/4/2026 Parties present and /or Counsel agreed by Consent that the Court dispose of the Judicial Review Case No. E144/2024 first and accordingly all parties/Counsel filed and exchanged written submissions. Judicial Review Application 5.The Applicant filed Judicial Review proceedings vide Notice of Motion dated 28/5/2024 seeking the following orders:- 6.Order of Certiorari to issue to bring into this Court for quashing of the 1st Respondent’s decision dated 24/4/2024 but brought to the exparte Applicant’s attention on 29/4/2014 on filing of Miscellaneous Criminal Application No E122/2024 denying the Applicant remission of sentence in a discriminatory manner and without concurrence and /or input of the 4th Respondent 7.Mandamus to issue to compel the 4th Respondent to consider remission in computing the sentence of the applicant and subsequently discharge him from prison unconditionally the release due date being 29/4/2024. 8.Prohibition against the 4th Respondent detaining or continuing to detain the exparte Applicant in a manner that is curtailing and impeding the exparte Applicant’s liberty with regards to matters beyond 29/4/2024. 9.Declaration that the 1st and 4th Respondent’s actions denying the exparte Applicant remission on extraneous claims that : he was planning to stage an anthrax biological attack on Kenyans – despite not being charged on evidence tendered in support , that he is not remorseful and neither rehabilitated contrary to mitigation relied by the trial court, is and remains unlawful , unfair and in breach of the exparte applicant’s right to fair hearing , fair administrative action ,freedom of security of the person and right to liberty freedom of movement and protection of the law. 10.Compensation of the exparte Applicant for inconvenience and stress caused leading to his continued illegal stay in prison beyond his due date 29/4/2024 and violation of the right to liberty and fundamental freedoms, to be assessed by the Court and to be awarded to the exparte Applicant. 11.The Applicant also prays that the 4th Respondent be estopped from raising any ground to continue holding the applicant independent of what was raised on the 1st Respondent affidavit sworn by the Commissioner of Prisons dated 26/4/2024 and the forwarding of the Cabinet Secretary’s letter which is a departure from their responsibility of reforming and rehabilitating prisoners. 12.That the Applicant was never subjected to disciplinary action. The application is supported by the grounds of opposition and verifying affidavit, statement of facts and annexures filed in the judicial review application. Grounds Of The Application. 13.The Applicant was convicted in Milimani Criminal Case No 835 OF 2016 Republic Vs Mohamed Abdi alias Abu Ramzi & 3 Others on 3 Counts of offences under the Prevention of Terrorism Act. The Applicant was subsequently sentenced to 12 years imprisonment which ran from the date of arrest which was 29/4/2016. The judgment and sentence of Hon. Chief Magistrate Martha Mutuku(as she then was) annexed to the application. 14.The Applicant spent 8 years in remand custody and was sentenced on 22/4/2024.That the Applicant release date was on 29/4/2024 after factoring remission. That the DPP filed High Court Miscellaneous Criminal Application No. 122/2024 to stay his release and remission of his sentence pending hearing of the appeal against acquittal. 15.That exparte adverse orders were issued in Misc Criminal Application E122/2024 staying remission and his release from Kamiti pending hearing of the intended appeal. Further that the exparte order was issued on the date of his release. 16.That the ODPP withdrew the application for stay of remission before interpartes hearing and alluded to the 4th Respondent’s affidavit and the attached letter of the Cabinet Secretary Interior National Administration dated 26/4/2024 and 24/4/2024 where the Cabinet Secretary denied the Applicant remission. 17.That the 4th Respondent in his affidavit did not recommend that the exparte Applicant ought to be denied remission but simply forwarded letter from Cabinet Secretary. 18.That the letter is correspondence between the Director of Public Prosecution and the Commissioner of Prisons which was authored at the behest of the DPP’S letter dated 23/4/2025 which was not attached by the DPP or shared to the Court and the parties. 19.That the Respondent claims that the Applicant and 3 other Co- Accused were charged with felonies which attracted severe penalty. The Applicant was denied bond and that there is no evidence of his remorse. Also, that the Applicant was a threat to public security and order. The Respondent relied on rumors and hate speech of the applicant’s alleged plan to use biological weaponry to lodge an anthrax bacteria attack to harm Kenyans. 20.However, the Applicant was not charged with these facts and there were no episodes or reports on these claims making the Respondent’s complaints unjustified. That the Cabinet Secretary was incited by the Director of Public Prosecution and the Cabinet Secretary is not the right party to recommend whether the applicant is remorseful of whether he had reformed. 21.That the 4th Respondent and other security agencies should commend whether he is a danger to security. However, the 4th Respondent was used a conveyor belt. That filing Miscellaneous Criminal Application No E 122/2024 was for an unjust administrative action to ensure his continued stay in prison. It was an abuse of process by engaging the judicial process only to be denied the right to be heard in breach of natural justice. That the unilateral denial of remission is ultra vires and a flagrant breach of rights to fair hearing and administrative action. Verifying Affidavit And Statement Of Facts 22.The Applicant filed verifying affidavit in support of the judicial review application. The Applicant further depones that: - 23.He is a Citizen of Kenya, holder of ID No 33220948 and a medical doctor and a graduand of the International University of Kampala. That he is married and his wife is also a medical doctor. He was charged in Milimani Criminal Case No 835/2016 together with his wife. His wife and co-accused were released on bond but he was in custody until his conviction and sentencing. He is still in custody owing to the letter of the Cabinet Secretary dated 24/4/2024. 24.That he extensively mitigated during sentencing and he was sentenced 12 years jail term in all counts which were ordered to run concurrently. That in computing the 12 months imprisonment less remission he was due for release from prison on 29/4/2024 but before then the ODPP filed HC Criminal Misc Application E122 of 2024 under Certificate of Urgency and cited Kenya Prison Service as interested Party and the Court granted where interim orders staying the awarding of remission and his release from prison pending hearing and determination of the Application and intended Appeal. 25.That; he filed his grounds of opposition in the Miscellaneous Criminal application No E 122/2024 on 28/4/2024 while the interested party / the 4th respondent did not file any response in the case. On 29/4/2024, the DPP alleged that he received a Replying Affidavit from the interested party /4th Respondent herein and the attached letter from the Cabinet Secretary. That the Cabinet Secretary had denied him remission on the premise that he was not remorseful and that he had not reformed and at the time of arrest he was planning an anthrax biological attack warfare on Kenyans. The Replying Affidavit was not supplied/served on him. The matter was adjourned for the DPP to avail and serve the affidavit and attachment. He filed Grounds of Opposition. 26.That the file was later called at 2:30pm on 29/4/2024 when the DPP said that the application was overtaken by events following the letter by Hon CS and withdrew the application. That; the Applicant was in shock and dismay and alleged that the DPP trapped him in disguise that he would be subjected to due process of law and would have the right to be heard but he was preempted by the administrative process employed parallel to Court process without his participation. The process embraced impunity and arbitrary decision devoid of natural justice; right to be heard. He annexed Affidavit by Interested party; Letter by Hon CS Interior & National (Administration) Security & proceedings of HCT Misc E122 of 2024. That he was denied hearing and the letter was not supplied to the Applicant. 27.The administrative orders by Hon CS Interior & National (Administration) Security of denial of remission are tantamount to condemnation without a hearing as required by Art 47 of the Constitution and rules of natural justice which is unfair and illegal and should be declared null and void. 28.The grounds of the application are replicated in the Appellant/Applicant’s pleadings outlined above. The Applicant further indicates that he expressed his remorsefulness and denunciation of terrorism groups before sentencing in the Trial Court. He also asked for a lenient sentence on grounds that he was a first offender and he had exhibited a cordial relationship with management and officers at Kamiti prison during the 8 years period spent in remand during hearing and pre-sentencing period. 29.The 4th Respondent, Commissioner of Prisons at no point recommended denial of remission but relied the letter from 1st Respondent of 24/4/2024 denying him remission in response to letter of 23/4/2024 from ODPP that the Appellant/Applicant remained a threat to public security and orders. 30.There was no reference to the episodes. That disciplinary issues never arose and he also had respect for the trial process. That; rumors and allegations that he intended to lodge an anthrax attack on Kenyans were discredited by the prosecution primary witnesses and were meant to tarnish the Applicant’s reputation. The applicant was never charged with such offence. 31.That the DPP did not request for exparte orders and the applicant was not engaged in Miscellaneous Criminal Application No 122/2024.The adverse orders were issued on 25/4/2024 while the interparty hearing was set on 19/4/ which was the day he was scheduled to be released from prison. 32.That the DPP alluded to the affidavit of the 4th respondent /interested party on the inter partes hearing date . That nowhere did the commissioner of prisons recommend that the exparte applicant/accused be denied remission and the commissioner of prisons only forwarded the Cabinet Secretary’s letter. That; with new developments by the Cabinet Secretary’s declaration on his remission, the DPP went ahead to withdraw the application after the objective had been achieved. 33.That the Cabinet Secretary was incited/setup by the Director of Public Prosecution, further, the Cabinet Secretary was not the right party to recommend if the Applicant/Appellant was remorseful and he had reformed. The interested party, 4th Respondent was the right person /office to do so 34.That unless the court intervenes, the applicant will be unjustifiably and in a discriminatory manner denied his remission arbitrarily despite being in good conduct and with no disciplinary issues during his incarceration. That; his continued stay in prison continues to be illegal irregular and unjustifiable. 35.The Applicant/Appellant reiterated same prayers to be granted as outlined in the Judicial review Application. Prosecution’s Grounds Of Opposition. 36.The Prosecution grounds of opposition are dated 9/6/2025 and contend that :- 37.The DPP preferred an appeal against the judgment and sentence of the court in Criminal Case 835/2016 through the HCCRA EO47 of 2024 which is pending. 38.That the issue of remission to the Applicant/ Convict was before the High Court in Misc. Criminal Application No. E122 of 2024 presided over by Hon. LJ L. N. Mutende. 39.That Section 46 of Prisons Act provides for remission of sentence & Section 46 (3A) of the Act provides that a prisoner may be deprived remission by either the Commissioner General of Prisons or the Cabinet Secretary for Interior. The Applicant was rightfully denied remission. 40.That during the Criminal Trial, CM Milimani Criminal Case 835/2016 the applicant was charged at the Makadara Law Court in Criminal Case No. 659 of 2023 with the offence of affray contrary to Section 92 of the Penal Code and with the offence of refusing to permit fingerprint to be taken contrary to section 55(5) as read with section 129 of the National Police Service Act, 2011.That the charges were withdrawn under Section 87 (a) CPC but were later reinstated in at the Kahawa Law Courts on 12/7/2024 and the case is currently ongoing. Applicants Written Submissions 41.The applicant submits that the respondent did not request for exparte orders in Miscellaneous 122/2024 and the exparte applicant was not heard in the matter. That adverse orders were issued without his involvement. That interpartes hearing was scheduled for the same date he was to be released. The applicant also filed grounds of opposition to the DPPs application challenging its merit and justification as the application was for settling undisclosed scores. 42.That during hearing and when the DPP was given an opportunity to present its case, the applicant and the court were ambushed with the DPP’s claims on the replying affidavit of the interested party and the CS letter which was not filed and the matter was adjourned. 43.That the threat to public order was made without reports from security formations and agencies. That the DPP’s letter dated 23/4/2024 referred in the Cabinet Secretary’s letter and was not attached and has not been brought in these proceedings despite it being the subject of these proceedings and is essential to the proceedings. That the Miscellenous Criminal Application No. 122/24 was withdrawn denying him remission .The DPP had also achieved the objective of having the applicant stay in prison. 44.That the 4th Respondent in collaboration with other security agencies are the right institutions to comment on the applicant’s remorse and whether he posed any security risk. That the applicant’s remorse became clear during the sentencing proceedings in Criminal case no 835/2016 and the DPP went ahead to recommend that the 8 years period be considered in the sentence and that he was a first offender. The court observed inter alia that he was a young man with a budding medical career and that he was a first offender who had maintained good behavior while in remand. 45.That during the criminal trial, PW12 who was the investigating officer in the case said he did not mention any intention to carry out an anthrax attack.The Applicant further submits that the grounds of opposition filed in the application have not justified the reason for denying the applicant remission. 46.That the charge sheet attached to the grounds of opposition does not refer to the applicant / accused. The applicant was referred to as a Somali national in the said charges while in Milimani Criminal Case no 835/2016 he was referred to as a Kenyan citizen through but the trial. The Respondent has not given clarity of the offence of affray at Kahawa Law Courts and the second charge at Kamiti maximum prison. 47.The Applicant’s response to the claim of charges is that he had not been charged tried, penalized or found guilty of any offence against discipline of the prison and that he was not informed of reasons to deny him remission. 48.That he had not been afforded an opportunity to make representations and the 1st Respondent’s decision was arbitrary. That the Cabinet Secretary ‘s administrative action but was bound by the rules of natural justice. There is also no evidence to support the claims that he was not remorseful and the applicant was not made aware of claims against him. That the exparte applicant had legitimate expectation to benefit from remission and to be released on an earlier date and not to serve the full jail terms. 49.That Section 46 (3)(b) of Prisons Act, does not limit the Cabinet Secretary. That the respondent is required to consider all and to act objectively when person’s liberty is at stake. That while Section 46 of the Act does not mention any inquiry, Section 52 and 53 of the Prison’s Act does not exclude the Cabinet Secretary from acting fairly. The Cabinet Secretary’s action of denying an inmate remission and imposing a punishment without a hearing is in conflict of Section 53 and an error in law. 50.The Applicant deposed that he is entitled to remission as provided by Section 46 (2) of Prisons Act. The Applicant also alleged that on 24th April 2024 when 1st Respondent addressed to ODPP communicating denial of remission it was made late in the day when remission was granted on 22/4/2024.The 2nd Respondent was stated to exercise powers under Section 26 4 (b) of Prisons Act. That remission is denied on ground of minor or aggravated offences and misbehavior that affects prison’s proper management. 51.The Applicant based the JR Application on Reg vs Gaming Board Ex P. Benalim (1970) 2QB417; on the Applicant’s right to legitimate expectation; Ridge vs Baldwin 1984 AC40 that where principles of natural justice apply rigid rules do not apply; Fairmount vs Environment Secretary [1976] 1WLR 1255 Parliament does not authorize exercise of powers in breach of principle of natural justice. DeSouza vs Tanga Town Council [1961] EA where judicial acts were distinguished from executive acts. The powers of the Courts is to only interfere with executive authority if it is shown to have contravened the law or exceeded their powers. 52.On remission, the Applicant relied on the case of David Oloo Onyango vs Attorney General [1987] eKLR Hudson Okunda Ochola vs Republic [2018] eKLR & Kenneth Otieno Odhiambo & 4 Others vs Republic [2019] eKLR among others. Respondent’s Written Submissions. 53.The 2nd respondent/ Director of Public Prosecutions filed submissions in the matter and referred to Section 46 of the Prisons Act which provides that convicted prisoners may by industry and good conduct earn remission of their term of imprisonment. The Respondent submits that remission is not absolute and that the power to grant remission is vested to the Commissioner General of Prisons and the Cabinet Secretary' for Interior. They must consider the provisions of section 46 of the Prisons Act and industry and good conduct, before determining that the prisoner has earned remission. The assessment on remission can only be made by Kenya Prisons as granted by Statute. 54.The Court should decline the invitation and consider similar position held in Hudson Okunda Ochola vs Republic [2018]; Ismael Mzee Ismael vs Attorney General 2021 eKLR; Francis Opondo vs Republic 2017 eKLR & Hezron Ogolla Odhiambo [2018] & Amos Mutamba Vs Republic Misc. Criminal Application No. 69/19 55.The prosecution also refers to the case of Crispus Sindani & 4 others -Vs-Republic (2019) where the Court explained that; remission is not automatic and that“The above entitlement does not come automatically; it is conditional upon the applicants’ satisfying the prison authorities that they have been of good conduct and discipline. A liberal reading of the said law presupposes that the prison authorities’ input is of paramount importance. It thus behoves a prisoner who intends to enjoy such remission to behave and cooperate well while under the prison custody. " 56.That the 1st respondent gave reasons in the letter dated 24th April,2024. Further that the exparte Applicant has not been of good behavior during the pendency of the concluded Milimani Criminal Case number 835 of 2016 and he did not earn remission. 57.Lastly; that the exercise of the powers by the Commissioner General of Prisons or the Cabinet Secretary is an exercise of executive power which cannot be interfered by this Hon Court unless it demonstrated to be unjust, arbitrary or capricious. The Applicant failed to establish that the 1st Respondent fettered his discretion behaved irrationally or capriciously that the Court intervenes to overrule the Hon cabinet Secretary’s discretion. Analysis & Determination 58.The Court considered pleadings and submissions by parties through Counsel. Judicial Review entails observance of rule of law; one of the foundational pillars of constitutional democracy, civilized governance, and the administration of justice. It signifies a legal order in which all persons, institutions, and organs of State—whether public or private—are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and consistent with constitutional and human rights norms. Judicial Review process entails examination of lawfulness of processes, procedures to reach decisions policies or action. The Review is to safe guard individual rights; promote accountability and maintain constitutional compliance in legal processes. 59.The Petition for judicial Review is brought under Order 53 Civil Procedure Act that a party sought writ of certiorari, mandamus and prohibition. After Constitution 2010 came into force, constitutional standards were in place guaranteeing Fair hearing Art 50 and Fair Administrative Action Art 47 Constitution. Emerging jurisprudence and binding precedent presents Judicial Review as follows;Supreme Court in Dande & 3 Others vs Inspector General, National Police Service & 5 others Petition 6 4 8 of 2022 (Consolidated) [2023] KESC 40 KLR where the Court held that judicial review was no longer a strict administrative law remedy but a Constitutional fundamental right enshrined in the Constitution; embedding Judicial review in the Constitution and enabled Courts to scrutinize both process and outcome /decision of administrative/legal body. 60.Judicial Review is codified by Article 23 of the Constitution that gives authority to High Court to uphold and enforce the Bill of Rights; the High Court has jurisdiction under Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(3)In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review 61.. Article 47 of the Constitution provides for Fair administrative action. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 62.. Article 50 of the Constitution provides for Fair hearing(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.(2)Every accused person has the right to a fair trial, which includes the right—(a)to be presumed innocent until the contrary is proved;(b)to be informed of the charge, with sufficient detail to answer it;…………………………………………………. 63.Article 51 of the Constitution provides for Rights of persons detained, held in custody or imprisoned retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned. 64.From the above legal principles; the key tenets are fair hearing and fair administrative action which entail observance of strict procedural and substantive requirements of the law when undertaking any action under the law. The rule evolved into a fundamental principle of natural justice. Parties are to be given equal opportunity to present their cases or divergent viewpoints. Of equal significance is the requirement of Fairness. Public functionaries should be duty conscious in actions and decisions which touch on common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable and what is unreasonable is arbitrary. An arbitrary action is ultra vires. [Constitutional Law, Doctrines and the Litigation of Fundamental Rights & Freedoms by I. Lenaola SCJ & A.O.Oginga Pg514-516] 65.This Court was presented with the Judicial Review to consider the documents correspondence proceedings culminating to the Applicant’s denial of remission in accordance with the law. Applying these legal principles outlined hereinbove, on the facts of instant matter; at the outset the Court notes with concern that despite very detailed pleadings and written submissions by parties through respective Counsel the referred documents proceedings correspondence relevant to enable this Court conduct the Judicial review are missing not filed availed to this Court and are not part of the Court record,a)These are particularly, Court proceedings in Criminal Application E 122 of 2024 where the High Court initially granted stay order before interpartes hearing of the substantive application on remission.b)The letter by the ODPP written to the Cabinet Secretary Interior & National Administration of 23rd April 2024 was not availed and was presented before Court in Criminal Application E 122 of 2024c)The letter by Hon Cabinet Secretary Interior & National Administration of 25th April 2024 where the Applicant was denied remission in reliance on the letter from ODPP that the Applicant was charged with serious offences and ought to have attracted severe penalty and the Applicant remained a threat to public security.d)The Affidavit alluded to have been filed by the interested party Kenya Prison Service & 4th Respondent herein Commissioner of Prisons was also missing/not availed. 66.Both Parties made several references to the various correspondence, documents and proceedings none of them availed them This is a Court of record, they are not before the Court. Therefore, the Court will not consider them. However, the Trial Court proceedings, Judgment & Pre-Sentencing Proceedings culminating to sentence of Count1,2,4,7 & 8 12 months each and to run concurrently and w.e.f date of arrest. 67.Notwithstanding the absence of the above outlined documents, from pleadings it is not contested that the Petitioner was arrested arraigned in Trial Court and was charged with criminal offences, tried and convicted and sentenced. The Petitioner as Prisoner by virtue of Section 46 Prisons Act is entitled to be considered for remission of sentence.46.(1)Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one third of their sentence or sentences: 68.The legal mandate and statutory duty rests with Commissioner of Prisons and/or Cabinet Secretary as stipulated in Section 46 3A & 4 of the Act as follows;(3A)A prisoner may be deprived of remission—(a)where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;(b)where the Minister for the time being responsible for internal security considers that it is in the interests of public security or public order.(4)Notwithstanding the provisions of subsection (1) of this section, on the recommendation of the Commissioner, the Minister may grant a further remission on the grounds of exceptional merit, permanent 69.In the instant case, the Petitioner by pleadings and submissions demonstrated on a balance of probability that the consideration of remission of his sentence as mandated by Section 46 of Prisons Act has not been undertaken in compliance with the Constitution and the law. 70.Section 46 limits the right to remission to accused facing life imprisonment and death sentence and robbery with violence. The provision was found unconstitutional to the extent that it failed to afford opportunity to inmates convicted under Section 296(2) of the Penal Code. In Petition 16/2016 Sammy Musembi Mbugua & Others vs. Attorney General & Others where the High Court found inter alia that“…the only part of section 46(1) of the Prisons Act that is unconstitutional is that which denies remission to persons sentenced to imprisonment for an offence under section 296(2) of the Penal Code.” 71.The Petitioner also submitted that he was not notified of process of denial of remission, presented with the adverse claims and afforded a hearing. The Petitioner illustrated the same right is granted to inmates during disciplinary proceedings within Prison and similar right is expected in consideration of remission Section 46 of the Prison Act does not exclude procedural fairness as same rights are clearly spelt out inSection 52 & 53 of Prisons Act;52(3)An officer in charge, if he transfers a case to the Commissioner under subsection (2) of this section, shall forward to the Commissioner—(a)a copy of the charge;(b)the record of all the evidence he has taken, including the evidence of the prisoner;(c)the reasons why he has found the prisoner guilty; and(d)any representations the prisoner wishes to make to the Commissioner in regard to punishment.53.No prisoner shall be punished for a prison offence until he has had an opportunity of hearing the charge against him and making his defense. 73.The appraisal of eligibility to remission and whether it should be revoked is a statutory function which is restricted to the 1st and 4th Respondents. This requires that the Respondents actions be limited and guided by the provisions of Section 46 (3) of the Act. Section 46 of Prison Act does not exclude procedural fairness. 74 .The State/ODPP correctly submitted Section 46 of the Prisons Act remission is not absolute and that the power to grant remission is vested to the Commissioner General of Prisons and the Cabinet Secretary' for Interior National Administration. The 1st & 4th Respondent; each must consider the provisions of Section 46 of the Prisons Act that require industry and good conduct, of an inmate before determining that the prisoner has earned remission. The assessment on remission can only be made by Kenya Prisons as granted by Statute. The Court cannot usurp the legal mandate by imposing its decision on the one in place, the Court is limited in ensuring the decision- making process is with adherence to the rule of natural justice that one is not condemned unheard and fair hearing and fair administrative action are applied to the process. 75.Article 47 of the Constitution requires all statutory and administrative actions should comply with the requirements of legality, reasonability, expediency and procedural fairness. Further, a party has the right to be given written reasons for any administrative action that is taken against him and to have prior and adequate notice of the nature and reasons for the proposed administrative action. It must be followed with an opportunity to be heard and to make representation in that regard. 76.In Orwoba -Vs- Attorney General & 4 others (2025] KEHC 49 (KLR), the High Court cited the decision of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 where the principle of natural justice was explained:“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.” 77.. In the case of David Oloo Onyango Vs Republic Civil Appeal 152/1986 Court of Appeal (Nyarangi Platt Gachuhi JjA ) which is spot on- on remission proceedings. Briefly facts are;On 1st November, 1982 the appellant was convicted of an offence under Section 57 (1) and (2) of the Penal Code by the Senior Resident Magistrate Nairobi and sentenced to 5 years imprisonment. Upon his admission into Prisons, the Appellant was entitled under section 46(2) of the Prisons Act, Cap 90The appellant averred that prior to the receipt of the Commissioner’s letter, he had not been charged, tried and found guilty or punished for any offence against prison discipline, that he was not informed what he had done to warrant reformation and rehabilitation over and above the lawful sentence, that he was not given any opportunity to be heard or explain or make representations as to why he should not be deprived of his remission, that the decision of the Commission of Prisons was arbitrary, in breach of natural justice, ultra-vires Section 46 of the Act, and therefore illegal, null and void. The further contention is that the appellant’s continued imprisonment after 4th March, 1986 is illegal and a false imprisonment.Nyarangi JA (Platt & Gachuhi JJA also concurred) held as follows quoted in part;To summarize and answer the principal substantive point of this appeal I would say the Commissioner erred in law in that he decided to deprive the appellant of his rights without affording him an opportunity to be heard. The Commissioner is required to act fairly towards the appellant. At the very least, the Commissioner ought to do the following acts: 1.To inform the appellant in writing in a language the appellant understands the disciplinary offence he is alleged to have committed and the particulars of the offence. 2.To afford the appellant an opportunity to be heard in person and to fix reasonable time within which the appellant (or an inmate) must submit his written answer to the officer-in-charge of the particular prison for onward transmission to the Commissioner. 3.Thereafter within reasonable time, the Commissioner should inform the appellant (or the inmate concerned) that pursuant to Section 46 (3A) (a) he has directed his mind at the allegation made against the appellant that he requires further reformation and rehabilitation, has considered the grounds for the allegation and the defense of the appellant (or inmate) and has decided to deprive the appellant of all remission granted to him under Section 46 (1) of the Prisons Act, but that he the appellant (or inmate)may petition the Minister in writing, through the Commissioner, to restore the forfeited remission in whole or in part under Sub-section 5 of Section 46. 78.From the above decision binding precedent to this Court, the 4th Respondent ought carry out its statutory mandate and consider the Petitioner’s remission as provided by Section 46 of the Act and in the manner prescribed in accordance with Constitution and the law. If a decision to deny the Applicant was made such is not before Court as such the Court prescribes that the process ought to entail Fair hearing and Fair Administrative action in default would amount to procedural impropriety. 79.In conclusion, the orders that commend to be granted are that, the Court finds there are relevant documents correspondence and proceedings missing and therefore cannot be considered if the process and outcome adhered to rule of law or not to be or not quashed by order of certiorari as prayed for by the Petitioner as they are not on Court Record. 80.Section 46 of Prisons Act mandates the 4th Respondent to consider Petitioner’s remission of his sentence. From evidence before the Court the legal mandate and statutory duty was not exercised by 4th Respondent resulting in mal -administration by omission and not in compliance with Constitution and the Law.Disposition1.The declaration is that the 4th Respondent did not exercise statutory duty and legal mandate to consider remission of the Petitioner’s sentence in accordance with Section 46 of Prisons Act.2.Mandamus hereby issues to compel the 4th Respondent Commissioner of Prison to consider remission in computing the sentence of the Petitioner in accordance with Section 46 of Prisons Act and in compliance with the Constitution by ensuring fair hearing Art 50 and fair administrative action Art 47 of the Constitution.3.The Petitioner may escalate/review to the Cabinet Minister Interior & National Administration. JUDGMENT DELIVERED SIGNED & DATED IN OPEN COURT IN CRIMINAL DIVISION HIGH COURT MILIMANI PHYSICALLY/VIRTUALLY ON 28TH MAY 2026.M.W. MUIGAIJUDGE