Kenya: AG, Prisons Court Blunder That Will See Convicts Go Free Earlier

Vincent Sila Jona was set to serve a 25-year jail term for his role in the murder of Philes Ndulu Kin'uu, meaning the 41-year-old was not expected to walk out of prison until 2044.

Sila and his friends - Muema Musau Mwau, Kyalo Musyoka and Boniface Wambua - had stormed into Ms Kin'uu's home in Kathyaka, Makueni County, on an unknown date between January 8 and 14, 2011.

The robbers beat Ms Kin'uu to death before escaping with several items from her house. Ms Kin'uu, a farmer, was found lying in a pool of blood by neighbours who got curious after noticing that her goats and sheep had remained tethered in one spot for days.

The neighbours found Ms Kin'uu's body in her kitchen, and reported the matter to police.

Police traced Ms Kin'uu's phone to Mwau, who in turn led the officers to his co-conspirators.

Confession

Jona eventually confessed to police with his aunt present, and provided details of how the group plotted to kill Ms Kin'uu and steal money and several items from her.

Wambua escaped from police custody, but the other three were convicted and handed 25-year sentences.

But following a precedent-setting ruling by Machakos High Court Judge George Odunga, Sila and his co-conspirators could walk out of prison in 2036 - eight years earlier - as time spent in remand will now be deducted from jail terms.

Last Thursday, Justice Odunga dismissed a petition by Attorney-General Paul Kihara Kariuki seeking to challenge an earlier decision to deduct time spent in remand from jail terms.

Mr Kariuki had asked the judge to reopen a petition by 88 prisoners that culminated in the order that required time spent in remand to be counted as part of jail terms for convicts and deducted from their sentences.

Prisoners to walk free

Seven days after the High Court made the order Mr Kariuki attempted to have the petition behind that landmark ruling reopened.

And in seeking a review of the decision, the AG let slip how a comedy of errors between the Kenya Prisons Service and his office saw a petition by 88 convicts, regarding a matter of great public interest, go uncontested in court.

Justice Odunga had also ordered the Kenya Prisons Service to register the date of admission for prisoners as the date they were first remanded, and not sentenced.

Before Justice Odunga's January decision, deducting time spent in remand from jail terms was largely up to the judicial officer handing out a sentence.

Some judges and magistrates would offer a lighter sentence if a convict had spent considerable time in remand, while others would simply overlook the years of custody, which in court was argued to be an unfair extension of jail terms.

But Justice Odunga's decision now means that prison terms will start being counted from the date of arrest, and not when a convict is sentenced.

In the group of prisoners who filed the petition, 51 will now walk free once the time they spent in police cells after arrest and in remand during trial is deducted from their jail terms.

Much like the decision in a case filed by Francis Muruatetu, which led to the abolition of mandatory death sentences in Kenya, the petition determined by Justice Odunga is set to have thousands of convicts released sooner.

In effect, the case of Sila and 87 others will lead to the decongestion of prisons.

The ripple effect of Justice Odunga's decision was an avalanche of re-sentencing applications filed by convicts.

Serving new jail terms

The 88 convicts filed their petition on September 16, 2020, arguing that leaving out the remand period from their jail terms was an underhand extension of their punishments.

Some of the prisoners said that during re-sentencing they had to start serving their new jail terms afresh, meaning the time they had spent in jail was not considered.

Christopher Marwa, a senior state counsel, told Justice Odunga that the AG's office was served with the petition and all supporting documents on September 25, 2020.

The Attorney-General's office then wrote to the Kenya Prisons Service seeking adequate information that would be used to prepare a detailed response and to defend the case.

The Kenya Prisons Service went silent, and on December 7, 2020 the AG's office wrote another letter requesting instructions on how to proceed with the case.

It was then that the Kenya Prisons Service revealed to the Attorney-General that the case had proceeded uncontested by government.

At the time, the case was only awaiting judgment since Justice Odunga had already heard the petitioners' case and taken their evidence.

Of the three government institutions sued, only the public prosecutor's office filed a response.

Director of Public Prosecutions (DPP) Noordin Haji was not opposed to the petition, but insisted that each case affected by the orders be treated individually.

In seeking a fresh hearing of the case, the Attorney-General's office argued that it is the main respondent as it is the institution charged with calculating remission - reduction of jail terms.

Nine months off

During arguments, the Attorney-General's office cried foul, saying that it was served with case documents after the case was fixed for mention.

But Justice Odunga faulted the AG's claim and held that it was a failure by an office funded with taxpayer money.

"In my view, inaction on the part of the Attorney-General to robustly defend claims brought against the government due to inaction must be seen as a dereliction of duty, failure to effectively undertake its mandate as expected under the foregoing Articles," Justice Odunga said.

"The impression I get from the position taken by the applicant is that the court ought to have gone out of its way to notify the Attorney-General of the status of the proceedings notwithstanding lack of indication that the Attorney-General was opposing the petition," he added

"With due respect, it is not the duty of this court to hold brief for the Attorney-General and inquire why it is not opposing a petition. To do so would amount to this court extending to the Attorney-General undue advantage and treating the Attorney-General differently from other litigants yet this court is sworn to do justice to all parties before it without fear or favour," Justice Odunga concluded before dismissing the application.

But even before Justice Odunga dismissed the Attorney-General's application, some convicts had already asked the courts to review their sentences.

Marsabit resident Mohamed Abubakar will get nine months off his 15-year jail sentence following his court application, which had Justice Odunga's January 2021 decision as the main authority.

Abubakar was convicted of attempted defilement in 2017, with the decision upheld by the High Court a year later.

But neither the magistrate's court that convicted him nor the High Court considered the nine months Abubakar spent in police cells after being arrested and in remand during trial.

High Court Judge Jesse Nyaga Njagi in April ordered that the nine months be deducted from Abubakar's sentence, taking into account Justice Odunga's decision.

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