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High CourtPartially AllowedMotion on Notice dated 1/10/2019 (arising from Petition Nos. 47, 16, 68, 92 and 93 of 2018)

Petitioners (resentenced murder convicts) v Republic

High Court of Kenya

23 January 2020

AMA. Mabeya

779 words in judgment

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The bottom line

While you are entitled to prison remission, challenging when your sentence begins requires the proper legal remedy, which is an appeal.

What this practically means

Executive summary

The four applicants had been convicted and sentenced to death for murder contrary to sections 203 and 204 of the Penal Code. Following the Muruatetu decision, Majanja J resentenced the 1st applicant to 25 years' imprisonment on 12/7/2018 (Petition No. 47 of 2018) and the 2nd to 4th applicants to 25 years on 16/10/2018 (Petition Nos. 16, 68, 92 and 93 of 2018). By a Motion dated 1/10/2019 they sought two substantive orders: that their sentences commence from the date of arrest, and remission of a third of their sentences under section 46 of the Prisons Act. They relied on section 333 of the Criminal Procedure Code and the Court of Appeal decision in Ahamad Abolfathi Mohamed & Another v. Republic; the State did not oppose the application but submitted that application of section 333 is discretionary. Mabeya J noted the applicants were arrested around 2002 and spent about five years in remand before conviction in 2007, and that the proviso to section 333 did not apply at original sentencing because the sentences were death. In the first resentencing judgment Majanja J expressly took into account four years in custody; the later judgments did not expressly refer to section 333 but imposed the same sentence. The court held the revising court must have considered the proviso and rejected the first prayer, directing that sentences run from the dates of the original sentences; the remedy was appeal. On remission, the court held that prisoners serving determinate sentences are entitled to remission under section 46 of the Prisons Act, and directed the Commissioner of Prisons to allow remission on the petitioners' sentences.

Key legal issues

Commencement of sentence and credit for time spent in custody

Holding

The resentencing court was presumed to have considered the custody period under the proviso to section 333 CPC; the applicants' remedy was appeal, not review

Reasoning

The court noted that in the first resentencing judgment Majanja J expressly took into account four years spent in custody, and in the later judgments imposed the same 25-year sentence. It inferred the revising court was alive to its obligations and that any grievance lay on appeal.

p. 2

Entitlement to remission under section 46 of the Prisons Act

Holding

Applicants, now serving determinate sentences, are entitled to remission of a third of their sentences

Reasoning

Before resentencing their sentences were indeterminate (death) and remission did not apply. Once resentenced to 25 years, the statutory right to remission attached and can only be lost in circumstances set out in the section.

p. 2

Legal principles established

A prisoner serving a determinate sentence, whatever the offence, is entitled to remission under section 46 of the Prisons Act
Application of the proviso to section 333 of the Criminal Procedure Code is at the discretion of the sentencing court

Court orders

1.First prayer (sentences to commence from date of arrest) rejected; sentences to run from the dates of the applicants' original sentences as ordered by the revising court
2.Commissioner of Prisons directed to allow remission on the petitioners' sentences as per the law provided

On appeal from: High Court of Kenya (Majanja J); Petition No. 47 of 2018; Petition Nos. 16, 68, 92 and 93 of 2018
Jurisdiction invoked: Resentencing jurisdiction following Muruatetu; application under section 333 of the Criminal Procedure Code and section 46 of the Prisons Act

Key timeline

Practical implications

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Cite this brief

Caselaw, "Petitioners (resentenced murder convicts) v Republic", Case Analysis (2020). Motion on Notice dated 1/10/2019 (arising from Petition Nos. 47, 16, 68, 92 and 93 of 2018). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.