Wilson Kipsang Kosgei v Republic [2022] KEHC 2100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL PETITION NO. E004 OF 2021

WILSON KIPSANG KOSGEI...................................................... APPLICANT

-VERSUS-

REPUBLIC..................................................................................RESPONDENT

JUDGMENT

WILSON KIPSANG KIRUIAliasKIMALEL is the Petitioner.

1. He was sentenced to 10 Years Imprisonment for the offence of Stock Theftcontrary to Section 278of 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/orset the petitioner at liberty as theHonourable Court would deem fit.Deem just and expedient for the fairleaving 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 3years and remains 3 years and 8months to complete the currentsentence, as enshrined in theremissions 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.

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 toproducehim before the court, in a timeous manner (as prescribed byArticle 49 (1) (h)of theConstitution), 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