REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL PETITION NO. E004 OF 2021 WILSON KIPSANG KOSGEI...................................................... APPLICANT -VERSUSREPUBLIC..................................................................................RESPONDENT JUDGMENT WILSON KIPSANG KIRUI Alias KIMALEL is the Petitioner. 1. He was sentenced to 10 Years Imprisonment for the offence of Stock Theft contrary to Section 278 of the Penal Code. 2. The said sentence was handed down on 14th March 2018. 3. The Petitioner told this Court that he had already served more than two-thirds of his sentence. By his calculations, the balance of the sentence was 3 Years and 8 Months, as at December 2020 when he signed the petition. 4. His explanation for how he derived the duration which he was yet to serve, was that he had taken into account the rule governing remission. 5. He sought the following reliefs in the petition; “Reduce the petitioner’s sentence and/or set the petitioner at liberty as the Honourable Court would deem fit. Deem just and expedient for the fair leaving of this matter (sic!) Give urgent orders of habeas corpus.” 6. Whilst canvassing the petition, the Petitioner submitted that the sentence he had already served was greater than the balance of the said sentence. 7. However, in the Certificate of Urgency dated 11th Janunary 2021, this is what the Petitioner said; “2. THAT: the petitioner has served 3 years and remains 3 years and 8 months to complete the current sentence, as enshrined in the remissions of the prison.” 8. The petition is not founded upon a clear factual basis. On the one hand he says that he had served more than 2/3 of the sentence, but on the other hand he specifies that the balance of the sentence was more than the period already served. 9. Secondly, the Petitioner has not provided any legal justification for the request for a reduction of the sentence. 10. If the Petitioner deemed the sentence as having been excessive, he ought to have mounted an appeal, to challenge it. 11. In any event, the fact that the Petitioner had served a considerable portion of the sentence, is not reason enough to justify a reduction of the balance of the said sentence. 12. In my considered opinion, the convict who is sentenced to incarceration is expected to comply with the rules and regulations governing prisons because that would earn him remission. When an inmate flouts rules and regulations, he risks losing remission.
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13. Therefore, the fact that the Petitioner had not infringed the prison rules and regulations, does not entitle him to the reduction of the sentence. 14. Finally, habeaus corpus is a fundamental right which protects each person against unlawful and prolonged detention. For instance if the police were to arrest an individual, but fail to produce him before the court, in a timeous manner (as prescribed by Article 49 (1) (h) of the Constitution), his relatives or acquintances may move the court for orders directed at the police, so that they are compelled to produce the man. 15. In this instance, the Petitioner was arrested, charged, tried by a court of competent jurisdiction, and ultimately convicted. He was then sentenced to 10 Years imprisonment. 16. His incarceration is not unlawful. Therefore, the Court cannot issue an order of habeas corpus, to compel the prison authorities to produce him in court. 17. In the result the petition lacks merit, and is dismissed. DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF FEBRUARY 2022 FRED A. OCHIENG JUDGE
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