[2018] KEHC 879 (KLR)
The court found that the petitioner, as a convicted prisoner, became entitled to remission of sentence from 15th December 2015, when remission was reinstated in the Prisons Act. The court relied on statutory provisions and relevant case law to hold that the denial of remission was not justified. The court issued an...
Source-derived case information.
- Citation
- [2018] KEHC 879 (KLR)
- Parties
- Appellant: Tyson George Ngowa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 1 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed.
- Legal Topics
- Remission of Sentence, Prisoners Rights, Sexual Offences, Sentencing Policy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tyson George Ngowa
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to remission of sentence under Section 46 of the Prisons Act.
- 2 Whether the denial of remission to the petitioner is unconstitutional.
Ratio Decidendi
The court found that the petitioner, as a convicted prisoner, became entitled to remission of sentence from 15th December 2015, when remission was reinstated in the Prisons Act. The court relied on statutory provisions and relevant case law to hold that the denial of remission was not justified. The court issued an order directing the Commissioner General of Prisons to apply remission to the petitioner’s sentence in accordance with Section 46 of the Prisons Act, but only to the portion of the sentence remaining as of 15th December 2015, when remission was reintroduced. The court rejected the respondent's argument that it lacked jurisdiction to grant such relief, holding that the...
Court Disposition
Petition allowed.
Orders
- An order is issued directing the Commissioner General of Prisons to apply remission to the sentence of the petitioner in accordance with Section 46 of the Prisons Act.
- Remission will only be applicable to the sentence that the petitioner was yet to serve on 15th December, 2015 when remission of sentences for convicted prisoners was reintroduced.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CONSTITUTIONAL PETITION NO. 1 OF 2018
TYSON GEORGE NGOWA..................................................APPELLANT
VERSUS
REPUBLIC...........................................................................RESPONDENT
JUDGEMENT
1. The Petitioner, Tyson George Ngowa, is serving 20 years imprisonment for the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, 2006. His appeals to this Court and the Court of Appeal were unsuccessful. Through this petition he seeks a declaration that he is entitled to be considered for remission of sentence as provided by Section 46 of the Prisons Act. His petition is premised on various provisions of the Constitution.
2. In brief, the Petitioner’s case is that when he was sentenced on 29th June, 2015 the power of remission of sentence granted to the Commissioner General of Prisons had been deleted from the Prisons Act, Cap. 90 through the Statute Law (Miscellaneous Amendments) Act, 2014. His case is that even after the power of remission of sentence was reinstated by the Statute Law (Miscellaneous Amendments) Act, 2015, he has not been granted remission. He urges this court to find that the decision to deny him remission of sentence is unconstitutional.
3. The Respondent through the Director of Public Prosecutions opposed the petition on the ground that this court has no power to grant remission.
4. I have considered the rival arguments in this case and find that for the reasons stated in Francis Opondo v Republic of Kenya [2017] eKLR; Busia H.C. Criminal Appeal No. 13 of 2015 and Malindi H.C. Constitutional Petition No. 6 of 2018, Hudson Okunda Ochola v Republic the Petitioner’s case has merit.
5. The Petitioner being a convicted prisoner was entitled to remission of sentence from 15th December, 2015 when remission of sentence was reinstated in the Prisons Act.
6. In the circumstances, an order is issued directing the Commissioner General of Prisons to apply remission to the sentence of the Petitioner in accordance with Section 46 of the Prisons Act. The remission will only be applicable to the sentence that the Petitioner was yet to serve on 15th December, 2015 when remission of sentences for convicted prisoners was reintroduced.
Dated, signed and delivered at Malindi this 19th day of December, 2018.
W. KORIR,
JUDGE OF THE HIGH COURT