Prisoners who had expected to be pardoned after serving part of their term were dealt a blow when a judge ruled that their freedom would depend on their behaviour.
High Court judge George Odunga ruled that the years to be served would not reduce automatically.
Instead, he said, prison authorities can review an inmates’ terms based on their conduct while serving their sentences.
At the same time, Odunga ruled that whenever the court re-sentences a convict, the term to be served will depend on whether the judge specifies that the years one has already served will run from the date they were first jailed.
When the court is silent on the number of days one has served, then the new term should run from the date of fresh sentencing.
Odunga also found that for those who have been re-sentenced, a remission starts from the date of re-sentencing and not from the date they were jailed.
“The actual period that a prisoner serves in prison may well lie in his own hands since his earlier release may depend purely on whether or not he retains the credit that the law granted to him at the time of his admission,” ruled Odunga. “In other words, while all prisoners are entitled to remission, it is the prisoner’s conduct that dictates whether or not that entitlement will actually be enjoyed.”
He was ruling in cases filed by Fredrick Tsuma and Aggrey Chiteri who argued that following a separate judgement by Odunga, revised sentences should be tabulated from the date one is jailed. They argued that remission should similarly be counted from the same date.
Tsuma was jailed for murder in 2008. He was on death row until the court re-sentenced him in 2019 to serve five more years. Before the re-sentencing, he had served 14 years and argued that prison authorities ought to have given him a benefit of remission.
Tsuma also wanted the court to order Kamiti Prison to compute his sentence from the date he was convicted and not when he was re-sentenced.
Chiteri on the other hand is in jail for robbery with violence. He was jailed in 2004 but the court revised his sentence in 2019, to serve five years. He too wanted a remission of his sentence from the date he was jailed. According to him, he had already been in prison for 19 years.
The two cases are an offshoot of a case filed by 88 death row prisoners whose sentences were revised after the Supreme Court declared mandatory death sentence unconstitutional. Led by Vincent Sila Jona, the convicts had argued that some of them were now illegally serving sentences.
In the group, there were those who - if their sentences were computed by taking into account the time they had spent in remand and the benefit of remission - would have already served their sentences.
They faulted the prisons authorities for tabulating the time from the date when one is sentenced.
“Petitioners are aggrieved in that the time spent in remand while undergoing trial has not been taken into account,” the judge heard.
Although the prisons department and the AG were parties in the case, they never responded while the DPP agreed that there was an infringement on the petitioners’ rights.
