Yokongwa & another v Director of Public Prosecution [2023] KEHC 23621 (KLR)

Yokongwa & another v Director of Public Prosecution (Petition E083 of 2023) [2023] KEHC 23621 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23621 (KLR)

Republic of Kenya

In the High Court at Meru

Petition E083 of 2023

TW Cherere, J

October 17, 2023

Between

Joseph Lomoni Yokongwa

1st Petitioner

Doreen Kawira Lomoni

2nd Petitioner

and

Director of Public Prosecution

Respondent

Judgment

1. By a judgment in Meru in Criminal Case No. 6 of 2012 delivered on 17th November, 2016, Petitioner was sentenced to death for the offence of murder.

2. He appealed to the Court of Appeal vide Criminal Appeal 101 OF 201 and the sentence was reduced to thirty (30) years from 30th November, 2015 when the appellant was convicted and sentenced.

3. Petitioner plead that he married to the 2nd Petitioner and they were blessed with onn child. He pleads that 2nd Petitioner who is now 37 years will be 45 years by the time of his release in 2032 and the couple will have been denied their right to precreate guranteed under Article 43 of the Constitution. He seek for a declaration that they are entitled to that right whiel the 1st Petitioner is still in custody.

4. Article 43 of the Constition provides as follows(1)Every person has the right—(a)to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;(b)to accessible and adequate housing, and to reasonable standards of sanitation;(c)to be free from hunger, and to have adequate food of acceptable quality;(d)to clean and safe water in adequate quantities;(e)to social security; and(f)to education.(2)A person shall not be denied emergency medical treatment. (3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants

5. On the other hand, Article 24(1) of the Constitution provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

6. The factors to be taken into account are: the nature of the right or fundamental freedom; the importance and purpose of limitation; the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by an individual does not prejudice rights and fundamental freedoms of others.

7. The right to conjugal rights in marriage is closely interrelated with the reproductive health rights as guaranteed under Article 43 - the right to found a family - and the right to life under Article 26 of the Constitution.

8. The Prisons Act is silent on the issue of conjugal right but the right can no doubt only be enjoyed in private setups which lack in prisons. In the present prisons’ set up, the right to conjugal right cannot be enjoyed without prejudicing the rights and fundamental freedoms of others.

9. Petitioners in this case have been denied the right to conjugal right by the fact that 1st Petitioner is serving a lawful sentence. The limitation to enjoy conjugal rights is in this case limited by law and is reasonable and justifiable in the circumstances.

10. In the end, the Petition lacks merit and the prayers therein are declined.

DELIVERED AT MERU THIS 12TH DAY OF OCTOBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti1st Petitioner - Present in person2nd Petitioner - AbsentFor the State - Ms. Rita (PC-1)