5 convicts win case repealing section of Prison Act that disallowed remission

The High Court sitting in Machakos has made declared unconstitutional Section 46(1)(ii) of the Prison Act.

The Act did not provide for remission to murder and robbery with violence convicts and also those serving life imprisonment.

In the ruling, those who have being in prison have a right to appeal and if they have served the required time they will be pardoned depending on the report from the Prison on behaviour and character.

Justice George Odunga further ruled that all prisoners should be entitled to remission regardless of the offences they have committed.

This then means that the Commissioner General of Prisons will receive the order and effect it to ensure all prisoners convicted of murder and robbery with violence have their sentences reduced by a third.

“…Now in today’s matter, which is whereby the number of years you have been sentenced to are reduced by a third e.g if you were sentence to 8years you will serve 6,” Justice Odunga said.

However, this privilege can be withdrawn from a prisoner by the prison if they do not maintain good behaviour during their time in prison.

This was a privilege that those being re-sentenced from death penalty to a number of years were being denied.

Led by Morris Kaberia, APP’s Assistant Legal Officer, the Machakos Legal Clinic presented a petition of Sammy Musembi Mbugua and four others seeking for a declaration for the remission of sentences to all inmates serving determinate sentences irrespective of offence.

In his ruling, Justice George Odunga stated that remission encourages a prisoner to be of good conduct when they know their behaviour could have an effect on the reduction of their sentences.

He further ruled that section 46 (1) (ii)of the prisons act was unconstitutional as it denied remission to prisoners sentenced for robbery with violence under section 296 (1) of the penal code.

The ruling comes after five prisoners from Machakos filed the case.

They are Sammy Musembi Mbugua,Nicholas Mukila Ndetei,Sammy Kitonga Mukusya,John Muoki Mbatha and Paul Mumo Muia.

The ruling will however apply to all convicted prisoners all over Kenya serving sentences for life and robbery with violence