[2017] KEHC 2742 (KLR)
The court held that Manyani Maximum G K Prison would comply with Article 35(1)(b) of the Constitution by making copies of the relevant statutes available in the prison library for the applicants' perusal, given the financial and administrative constraints. The court declined to interfere with the administrative...
Source-derived case information.
- Citation
- [2017] KEHC 2742 (KLR)
- Parties
- Applicant: Thomas Morara Nyabenga; Applicant: Charles Okello Olala; Applicant: Dennis Mateyo Omaiyo; Respondent: The PS Interior Ministry; Respondent: The Commissioner General of Prisons; Respondent: The P.P.C. Coast Region; Respondent: The Officer in Charge Manyani Prison; Respondent: The Attorney General of Kenya
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 4 of 2017
- Procedural Posture
- Criminal Misc Application / Ruling on Interlocutory Applications and Directions
- Outcome
- Interlocutory orders granted; directions issued for further hearing.
- Judges
- CM Kamau
- Legal Topics
- Right of Access to Information, Prisoners Rights, Administrative Discretion, Transfer of Prisoners
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Morara Nyabenga
Applicant
Charles Okello Olala
Applicant
Dennis Mateyo Omaiyo
Applicant
The PS Interior Ministry
Respondent
The Commissioner General of Prisons
Respondent
The P.P.C. Coast Region
Respondent
The Officer in Charge Manyani Prison
Respondent
The Attorney General of Kenya
Respondent
Procedural Posture
Criminal Misc Application / Ruling on Interlocutory Applications and Directions
Legal Issues
- 1 Whether the applicants, as inmates, are entitled to access copies of statutes under Article 35(1)(b) of the Constitution.
- 2 Whether the court should order the transfer of the applicants to different prisons or leave such decisions to prison administration.
- 3 Whether the Officer-in-Charge of Manyani Prison should be compelled to appear personally during the hearing of the petition.
Ratio Decidendi
The court held that Manyani Maximum G K Prison would comply with Article 35(1)(b) of the Constitution by making copies of the relevant statutes available in the prison library for the applicants' perusal, given the financial and administrative constraints. The court declined to interfere with the administrative discretion regarding the transfer of inmates, leaving such decisions to the Officer-in-Charge unless a formal application is made. The court also directed the Deputy Registrar to facilitate service of the petition and orders on relevant statutory bodies and emphasized the need to respect the applicants' rights under Article 28 during incarceration. The Attorney General was directed...
Court Disposition
Interlocutory orders granted; directions issued for further hearing.
Orders
- Manyani Maximum G K Prison to avail copies of Cap 90, The Prisoners Transfer Act, 2015, Persons Deprived of Liberty Act 2015, and the Torture Act 2017 in its library for applicants' perusal.
- Transfer of applicants left to the discretion of the Officer-in-Charge, with no court interference unless formally applied for.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VOI
CRIMINAL MISC APPLICATION NO 4 OF 2017
THOMAS MORARA NYABENGA............................................1ST APPLICANT
CHARLES OKELLO OLALA..................................................2ND APPLICANT
DENNIS MATEYO OMAIYO....................................................3RD APPLICANT
(On behalf of all inmates at Manyani Prison)
VERSUS
THE PS INTERIOR MINISTRY............................................1TH RESPONDENT
THE COMMISSIONER GENERAL OF PRISONS.............2TH RESPONDENT
THE P.P.C. COAST REGION.............................................. 3TH RESPONDENT
THE OFFICER IN CHARGE MANYANI PRISON................4TH RESPONDENT
THE ATTORNEY GENERAL OF KENYA............................5TH RESPONDENT
AND
THE KENYA NATIONAL HUMAN RIGHTS COMMISSION
THE NATIONAL CHAIRMAN LAW SOCIETY OF KENYA
THE ETHICS AND ANTI – CORRUPTION COMMISSION
THE CIVIL SOCIETY OF KENYA
RULING
I have heard the lengthy submissions by the three (3) Applicants and Mr Sirima who is holding brief for Mr Wachira for the Attorney General and hereby direct as follows:-
1) According to Article 35 (1) (b) of the Constitution of Kenya, 2010, every citizen has the right of access to information held by another person and required for the exercise or protection of any right or fundamental freedom. Mr Sirima has indicated that Manyani Maximum G K Prison will avail copies of Cap 90, The Prisoners Transfer Act, 2015, Persons Deprived of Liberty Act 2015 and the Torture Act 2017 in its library. Appreciably, the three (3) Applicants are inmates who might not have financial ability to take copies of the Statutes. On the other hand, Manyani G K Prison is a penal institution that might not have a vote to facilitate the giving of copies to the Applicants. In view of the peculiar circumstances of this matter, I am more inclined to find that once copies of the Statutes are kept in the library for the Applicants’ perusal, Manyani G K Prison will have complied with Article 35 (1) (b) of the Constitution of Kenya.
2) Regarding the issue of the transfer of the Applicants to different prisons, I leave the procedures and mode of transfers of the Applicants, if need be, to the Officer – in – Charge Manyani G K Prison as I am reluctant to interfere with the administrative duties of other statutory bodies without any formal application being placed before me for determination. I have, however, noted that the said Officer – in – Charge Manyani Maximum G K Prison is not opposed to transferring the 1st and 3rd Applicants to Shimo La Tewa G K Prison and the 2nd Applicant to Malindi G K Prison pending the hearing and determination of the Petition herein. Transferring the 3rd Applicant to Kisii G K Prison will also be outside the mandate of this court. However, he ought to be taken for his cases in Kisumu as and when Production Orders are issued for the hearings in Kisumu.
3) Directions have not been given regarding how the Petition herein will be disposed of. I am therefore not inclined to order the appearance of Mr Maswai Officer – in – Charge Manyani Maximum Prison personally during the hearing and determination of this Petition until directions have been taken.
4) As the Petitioners are inmates, I hereby direct that the Deputy Registrar High Court of Kenya, Voi do facilitate the serving of the Applicants’ Petition and this order upon The Kenya National Human Rights Commission, The National Chairman Law Society of Kenya, and the Ethics and Anti – Corruption Commission for their perusal and further action and for their attendance in court in future.
5) This matter is hereby listed for directions on the manner of disposing of the Petition herein on 13th November 2017.
6) The Officer – in – Charge Manyani Maximum G K Prison is hereby directed to bear in mind the provisions of Article 28 of the Constitution of Kenya to ensure that the rights of the Applicants are respected and protected at all times they will be incarcerated at the said prison.
7) The Attorney General to inform the court of the position of the 2nd Applicant’s monies in the sum of Ksh 75,000/- on the 13th November 2017.
8) Orders accordingly.
DATED and DELIVERED at VOI this 23rd day of October 2017
J KAMAU
JUDGE
In the presence of:-
Thomas Morara Nyabenga – 1st Applicant
Charles Okello Olala – 2nd Applicant
Dennis Mateyo Omaiyo– 3rd Applicant
Sirima holding brief for Wachira for the Attorney General
Josephat Mavu– Court Clerk