1. The Applicant herein filed a Notice of Motion dated 28th May, 2024 Under Order 53 Rule 3(1) Civil Procedure Rules, 2010; Section 8 & 9 of the Law Reform Act and all enabling provisions of the law seeking the following orders against the Respondents;
1) That an Orders of Certiorari to issue to bring into this court to be quashed, the 1st Respondent's decision denying the applicant remission of sentence in a discriminatory manner and without concurrence and/or the input of the 4th Respondent dated the 24th April, 2024 but brought to the attention of the Exparte applicant on the 29th April, 2024 when Misc. criminal application number El22 of 2024 (filed by the 2nd Respondent) was due for hearing forcing the said hearing to be adjourned to 2.30pm the same date so as to allow service of the same to take place;
2) That an Orders of Mandamus to issue compelling the 4th Respondent to consider remission in computing the sentence of the applicant and to subsequently discharge him from prison unconditionally, his release date having been due on the 29th April, 2024. The 4th Respondent should also be estopped from raising any grounds to continue holding the applicant, independent of what was raised by the 1s1 Respondent. From the affidavit sworn on behalf of the Commissioner of Prisons dated the 26th April, 2024 it appeared conflicted in forwarding the CS letter which was a departure from their co-duty/responsibility of reforming/rehabilitating of prisoners and while been aware that the applicant has never been a subject of any disciplinary action throughout his stay in prison to date;
3) That an Orders of Prohibition to issue prohibiting the 4th respondent from detaining, continuous detention of the Exparte applicant or in any manner whatsoever curtailing/impeding the Exparte applicant's liberty/freedom with regard to the matters herein beyond the 29th April, 2024;
4) That a Declaration to be made declaring that the action of the 1st & the 4th respondents denying the Exparte applicant remission in the basis of extraneous claims to wit that the Exparte applicant was planning to stage an anthrax biological attack on Kenyans (despite having not been charge with the same nor evidence tendered in support of the said wild claims!) and that he was not remorseful and neither had he rehabilitated (which is contrary to the mitigation tendered by the Exparte application & relied upon by the trial court in passing the appropriate sentence) is and remains unlawful, unfair and a breach of the Exparte applicant's rights to fair hearing, fair administrative action, freedom and security of the person of the Exparte applicant; and Exparte applicant's right to liberty, freedom of movement and secure protection of the law;
5) That the court to be pleased to order for Compensation to the Exparte applicant for the inconvenience & stress caused leading to his continued illegal stay in prison beyond his due date for release of the 29th April, 2024 and for the violation of the Exparte applicant's right to liberty and fundamental freedoms to be assessed by the Honourable court & awarded to the Exparte applicant.
6) That the Respondents generally and the 2nd Respondent to be specific, to be condemned to bear the costs of the Application.
2. The application is supported by a Statutory statement dated 24th June, 2024 and Verifying Affidavit of Mohamed Abdi Ali sworn on even date.
3. It is the Applicant’s case that he is a Kenyan medical doctor who graduated in 2015 and was interning at Makueni County Referral Hospital, was arrested on April 29, 2016, and jointly charged with his wife and two others in Criminal Case No. 835 of 2016; while all co-accused, including his wife, were granted bond, he remained in custody throughout the trial and beyond his conviction and sentencing in April 2024 due to a directive from the Ministry of Interior.
4. He deposes that he charged with eight counts, acquitted on three, and convicted on five, receiving a 12-year concurrent sentence from the date of his arrest (April 29, 2016); although he was due for release in April 2024 after remission, the DPP filed a last-minute urgent application (Misc. Crim. App. No. E122 of 2024) seeking to block his release, resulting in Exparte stay orders based on a letter from the Cabinet Secretary alleging lack of remorse and a biological warfare threat claims which he contests as unsubstantiated and procedurally unfair.
5. The Applicant expresses shock and dismay at the Director of Public Prosecution’s (DPP) conduct and he accuses the DPP of misleading the court by initiating legal proceedings only to abandon them in favor of an administrative process denying him remission without his participation or right to be heard.
6. He further argues that there is a conflict of interest involving the Commissioner of Prisons acting as a courier for the DPP’s letter denying remission, despite the trial court’s findings that he showed remorse, had no disciplinary issues in prison, and was cooperating with counter-terrorism efforts, thus disputing the DPP’s claims that he was not remorseful or reformed.
7. The Applicant denies the Cabinet Secretary's and ODPP’s baseless claims that he planned an anthrax attack, pointing out that no such evidence was presented during his trial, and argues that the ODPP failed to raise any issues regarding his remorse or reform during mitigation or seek prison reports before filing a last-minute application to stay his remission and release; he condemns these administrative maneuvers as unlawful, lacking due process, violating his constitutional right to a fair hearing under Article 47, and calls for the denial of remission orders to be declared null and void.
8. The Applicant filed written submissions dated 29th May, 2024.
9. The Applicant challenges the 1st Respondent’s directive dated 24th April 2024, which he asserts deprived him of his remission rights based on a questionable letter from the Director of Public Prosecutions dated 23rd April 2024.
10. It is contended that this action was arbitrary, illegal, ultra vires, and violated his constitutional rights to a fair hearing, fair administrative action, and natural justice.
11. It is his submission that he was convicted on five counts in a terrorism-related case after eight years in custody, he had expressed remorse and reformed behavior during sentencing, and disputes the unfounded allegations of planning an anthrax attack, which were never supported by evidence or charges, describing such claims as baseless and defamatory tactics by the ODPP.
12. He further submits that in Miscellaneous Criminal Application No. E112 of 2024, the Director of Public Prosecution (DPP) did not initially seek Exparte orders, yet the court nonetheless issued adverse Exparte orders on April 25, 2024, staying the Applicant’s remission and release without his input. The hearing was scheduled for April 29, 2024, the Applicant’s original release date prompting the Applicant to file opposition grounds alleging the DPP’s application was a vendetta during the hearing, the DPP unexpectedly introduced an affidavit and a Cabinet Secretary’s letter not previously served to the Applicant or court, causing an adjournment to allow proper service.
13. It is contended that the affidavit from the Commissioner of Prisons did not recommend denial of remission but merely forwarded a letter from the Cabinet Secretary for Interior & National Administration dated 24th April 2024, which denied the Applicant’s remission based on the ODPP’s unproduced and undisclosed letter alleging the Applicant was unremorseful, unreformed, and a public security threat without evidence or reports to substantiate such claims; despite the Applicant’s scheduled release on 29th April 2024, the ODPP withdrew its court application after achieving its objective through this administrative directive, thereby circumventing due process and denying the Applicant the right to be heard, amounting to an abuse of judicial process and breach of natural justice.
14. The Applicant argues that the denial of his remission was arbitrary, unlawful, and a clear violation of his rights to fair hearing, fair administrative action, and natural justice and despite the 1st, 3rd, and 4th Respondents acknowledging receipt of his pleadings, they failed to file any response.
15. The Applicant contends that the Director of Public Prosecution (ODPP) wrongly influenced the Cabinet Secretary’s decision, even though the ODPP is not the proper authority to assess his remorse, reform, or threat level.
16. The Kenya Prison Service (4th Respondent) was merely used as a courier to deliver the Cabinet Secretary’s letter, enabling the ODPP to bypass due process and justify keeping him imprisoned in a vengeful and discriminatory manner.
17. It is the Applicant’s submission that during the original trial (MCCR No. 835 of 2016), he expressed remorse and was recognized as a first-time offender. The trial court acknowledged the following:
i. The offences consisted of the collection of information as opposed to collection of weapons;
ii. There was no injuries, bloodshed or death that occurred as a result of the offences preferred;
iii. The accused (Exparte Applicant) had shown remorse and willingness to reform. It was submitted that the accused has held several meetings with the National Counter Terrorism Centre and that he had denounced all his previous associations;
iv. The accused is a young man, who had a budding medical career, was recently married to the 2nd accused person prior to his arrest. He pleaded to be given a second chance to life;
v. The accused is a first offender who has maintained good behavior while in
vi. remand pending or awaiting trial.
18. The Applicant asserts that the 2nd Respondent attached two unrelated charge sheets referencing different individuals, Somali nationals unconnected to the Applicant, a Kenyan revealing a clear attempt to tarnish the Applicant’s reputation without basis. Additionally, he argues that the 4th Respondent has not provided clarity on alleged incidents in these attachments, which occurred in prisons and times unrelated to his case, further exposing the 2nd Respondent’s unfounded and malicious intentions.
19. It is also his case that has filed a separate appeal (HCCRA No. E046 of 2024) against his conviction and sentencing on other counts, which was scheduled for mention on 6th March 2025.
20. He states that having successfully stayed the Applicant’s release and remission via Misc. Criminal Application No. E122 of 2024, they later advised the Applicant that the proper remedy was a judicial review at the High Court then on 20th November 2024, the 2nd Respondent then suggested the Applicant was in the wrong forum and should pursue judicial review in the High Court Criminal Division, citing their pending criminal appeal.
21. This contradictory stance has unnecessarily dragged him into protracted legal battles, adversely affecting his mental, social, emotional wellbeing, and liberty.
22. It is his submission that upon his admission to prison on 22nd April 2024, following a 12-year sentence running concurrently from his arrest date (29th April 2016), he was entitled under section 46(2) of the Prisons Act to remission as a matter of right, credited from the start of his sentence. However, on 24th April 2024, the 1st Respondent (Cabinet Secretary) issued a late letter denying this remission, influenced by the 2nd Respondent, relying on unsubstantiated claims that the Applicant was not remorseful, had not reformed, and posed a security threat.
23. According to him, the letter wrongly cited section 26(4)(b) of the Prisons Act, which governs prison officers’ roles but is irrelevant to remission decisions.
24. He maintains that prior to this, he had no disciplinary charges, was not informed of any grounds for denial, and was denied a hearing, violating natural justice and rendering the denial arbitrary, ultra vires, and illegal.
25. It is his case that continued detention beyond 29th April 2024 amounts to false imprisonment, justifying claims for compensation.
26. Reliance is placed in Reg v Gaming Board, Ex P Benalim, (1970) 2 QB 417 at p 430, letter B, where the court held:
“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent. Everything depends on the subject matter…At one time it was said that principles only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v Baldwin 1984 AC 40”
27. The Applicant submits that hat the principle of natural justice applies wherever a reasonable person would expect fairness in decision-making that affects others. In this case, any reasonable observer would expect the Cabinet Secretary to act fairly when deciding whether to deny an inmate remission earned under the Prisons Act. Such a decision should be based on credible reports, likely prepared by the Officer-in-Charge of Kamiti Main Prison and relevant security agencies, including but not limited to the National Intelligence Service (NIS).
28. In Souza v Tanga Town Council [1961] E A 377 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223, the courts distinguished judicial from executive acts, noting that courts only intervene in executive actions if there is a clear contravention of the law. Lord Greene MR emphasized that discretion must be exercised reasonably, meaning the decision maker must consider relevant factors and exclude irrelevant ones, avoiding decisions so unreasonable that no sensible person would accept them.
29. It is posited that the Cabinet Secretary was required to afford him a fair hearing before making a decision to deny remission. This includes considering any adverse reports alongside the inmate’s response. Importantly, the inmate is entitled to release upon completing the lawful sentence, and continued detention based on subjective assessments of remorse or risk is unlawful.
30. In R v Hull Prison Board of Visitors Exparte St Germain (1979), the Court of Appeal affirmed that even internal disciplinary matters are subject to judicial review unless expressly excluded by statute which the Prisons Act does not do.
31. Thus, the Applicant argues that the Cabinet Secretary was obligated to inform the Exparte Applicant of the allegations, allow time to respond, consider his defense, and demonstrate fair consideration. The absence of a formal inquiry under Section 46(4)(b) does not excuse procedural unfairness. To suggest otherwise undermines the rule of law and the courts’ duty to protect individual rights.
32. He invokes Section 53 of the Prisons Act, which provides that no prisoner can be punished for a prison offense without being given the opportunity to hear the charges and present a defense. This principle of natural justice applies to any administrative act depriving an inmate of remission, including for minor or aggravated offenses.
33. It is therefore questioned whether the Rules of Natural Justice were followed by the Cabinet Secretary in making the decision. Such rules may require an inquiry where the accused understands the charges and can present a defense. Alternatively, an investigation by officers whose findings are reviewed by the decision-maker—after giving the affected person a chance to respond—may suffice, even if the person is absent at the final decision.
The Respondents’ case;
34. Despite being granted an opportunity to file its responses and submissions, the Respondents have not complied with the court orders. All that the Respondent did despite being given opportunities to upload their responses on CTS was to write an email which does not amount to filing.
Analysis and determination;
The following to be the issues for determination;
1) Whether or not this court has jurisdiction.
2) To whether or not the applicant is entitled to the reliefs sought.
35. In the case of Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the supreme court pronounced itself on jurisdiction thus [paragraph 68]:
“(68) A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which Is conferred upon it by law. We agree with counsel for the first and second Jurisdiction to entertain a matter before it, is not one of mere procedural Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, Commission (Applicant), Constitutional Application Number 2 of 2011. Where they cannot expand its jurisdiction must operate within the constitutional limits. It confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, court or tribunal by statute law." (Emphasis provided) where it quoted with approval the oft cited case of Owners of Motor Vessel 'Lillian S' v Caltex In Re The Matter of the Interim Independent Electoral Commission where the Court stated: - "[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14): “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step."(underlining supplied) [30] The Lillian 'S' case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution." The application as drawn and filed grossly violates the provisions of Order53 Rule 2 of the Civil Procedure Rules, 2010 in that 'Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such a shorter time period as may be prescribed by the Act. Section 9(3) of the Law Reform Act provides that in “In case of an application for an order of certiorari to remove any judgement, order, decree, conviction or any other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree” Whether the application is entitled to the leave as sought All Applications for leave to institute proceedings for certiorari ought to be made within 6 months from the date of the decision which the Applicant desires to have quashed. Order 53 Rule 2 of the Civil Procedure Rules stipulates that applications for Judicial Review Orders such as of Certiorari have to be brought within the period of 6 months. The said rule provides; “Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
36. In order to determine whether the court has jurisdiction I have identified a couple of instrumental arguments from the Applicant’s case which leads this court to conclude that the High Court Criminal Division has the proper jurisdiction to preside over this suit.
37. For instant,he deposes that he charged with eight counts, acquitted on three, and convicted on five, receiving a 12-year concurrent sentence from the date of his arrest (April 29, 2016); although he was due for release in April 2024 after remission, the DPP filed a last-minute urgent application (Misc. Crim. App. No. E122 of 2024).
38. The Applicant expresses shock and dismay at the Director of Public Prosecution’s (DPP) conduct and he accuses the DPP of misleading the court by initiating legal proceedings only to abandon them in favor of an administrative process denying him remission without his participation or right to be heard.
39. He further argues that there is a conflict of interest involving the Commissioner of Prisons acting as a courier for the DPP’s letter denying remission.
40. The Applicant denies the Cabinet Secretary's and ODPP’s baseless claims that he planned an anthrax attack, pointing out that no such evidence was presented during his trial, and argues that the ODPP failed to raise any issues regarding his remorse or reform during mitigation or seek prison reports before filing a last-minute application to stay his remission and release.
41. The Applicant challenges the 1st Respondent’s directive dated 24th April 2024, which he asserts deprived him of his remission rights based on a questionable letter from the Director of Public Prosecutions dated 23rd April 2024.
42. It is his submission that he was convicted on five counts in a terrorism-related case after eight years in custody, he had expressed remorse and reformed behavior during sentencing, and disputes the unfounded allegations of planning an anthrax attack, which were never supported by evidence or charges, describing such claims as baseless and defamatory tactics by the ODPP.
43. The Applicant argues that the denial of his remission was arbitrary and unlawful.
44. It is the Applicant’s submission that during the original trial (MCCR No. 835 of 2016), he expressed remorse and was recognized as a first-time offender. The trial court acknowledged the following:
i) The offences consisted of the collection of information as opposed to collection of weapons;
ii) There was no injuries, bloodshed or death that occurred as a result of the offences preferred;
iii) The accused (Exparte Applicant) had shown remorse and willingness to reform. It was submitted that the accused has held several meetings with the National Counter Terrorism Centre and that he had denounced all his previous associations;
iv) The accused is a young man, who had a budding medical career, was recently married to the 2nd accused person prior to his arrest. He pleaded to be given a second chance to life;
v) The accused is a first offender who has maintained good behavior while in remand pending or awaiting trial.
45. It is the Applicant’s case that during the mention on 20th November 2024, the 2nd Respondent argued that this Court lacked jurisdiction to grant the sought orders, insisting the matter be transferred to the High Court Criminal Division where they have filed an appeal (HCCRA No. E047 of 2024) against his discharge/acquittal on certain counts. The appeal was set for mention on 13th February 2025.
46. Though the Respondent has not raised the issue of jurisdiction, this court can raise it. In so holding I am guided by the case of Harun Meitamei Lempaka vs Lemanken Aramat & 2 Others [2014] eKLR the Supreme Court cited with approval decided cases affirming that it is firmly settled law that issues of jurisdiction or competence of a court to entertain or deal with a matter before it is very fundamental. It is a point of law and therefore, a rule of court cannot dictate when, and how, such point of law can be raised.
47. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this Court. The apex court proceeded to state as follows:
“(176) Consequently, where such a jurisdictional question is raised, a challenge of parties being bound by their proceedings cannot rightly lie. The law is the preserve of the courts which courts take judicial notice of. A party does not have a ‘monopoly’ of the law. The court does have this monopoly as it applies the law to a set of facts in reaching its decision. Hence, a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question.”
48. The Court of Appeal in Barclays Bank of Kenya vs Pyritic Guards Limited [2015] eKLR, confronted with a similar issue stated:
“It is also trite law that a point of law can be raised at any stage, even though not raised before the court of first instance. The Court can also on its own motion raise a point of law at any point and make a determination based on the same even where such point has not been canvassed by the parties. The learned judge did not therefore do anything outrageous by raising the issue of non-compliance with Regulation 79 of Table A of the Companies Act and acting on it.” (Emphasis added)
[37] It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated. Because the question of jurisdiction is so fundamental, a limitation on the authority of the court, it can be raised at any stage of the proceedings by any party or even by the court suo motu. As a matter of practice, this Court has a duty of jurisdictional inquiry to satisfy itself that it is properly seized of any matter before it.
[38] It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
49. This court lacks jurisdiction to preside over this suit.
The 2nd issue:
50. The Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR stated;
“[36] Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
51. Having found that the court lacks jurisdiction, this court must down its tools.
Order;
This suit is hereby transferred to the High Court Criminal Division of the High Court.
1) That an Orders of Certiorari to issue to bring into this court to be quashed, the 1st Respondent's decision denying the applicant remission of sentence in a discriminatory manner and without concurrence and/or the input of the 4th Respondent dated the 24th April, 2024 but brought to the attention of the Exparte applicant on the 29th April, 2024 when Misc. criminal application number El22 of 2024 (filed by the 2nd Respondent) was due for hearing forcing the said hearing to be adjourned to 2.30pm the same date so as to allow service of the same to take place;
2) That an Orders of Mandamus to issue compelling the 4th Respondent to consider remission in computing the sentence of the applicant and to subsequently discharge him from prison unconditionally, his release date having been due on the 29th April, 2024. The 4th Respondent should also be estopped from raising any grounds to continue holding the applicant, independent of what was raised by the 1s1 Respondent. From the affidavit sworn on behalf of the Commissioner of Prisons dated the 26th April, 2024 it appeared conflicted in forwarding the CS letter which was a departure from their co-duty/responsibility of reforming/rehabilitating of prisoners and while been aware that the applicant has never been a subject of any disciplinary action throughout his stay in prison to date;
3) That an Orders of Prohibition to issue prohibiting the 4th respondent from detaining, continuous detention of the Exparte applicant or in any manner whatsoever curtailing/impeding the Exparte applicant's liberty/freedom with regard to the matters herein beyond the 29th April, 2024;
4) That a Declaration to be made declaring that the action of the 1st & the 4th respondents denying the Exparte applicant remission in the basis of extraneous claims to wit that the Exparte applicant was planning to stage an anthrax biological attack on Kenyans (despite having not been charge with the same nor evidence tendered in support of the said wild claims!) and that he was not remorseful and neither had he rehabilitated (which is contrary to the mitigation tendered by the Exparte application & relied upon by the trial court in passing the appropriate sentence) is and remains unlawful, unfair and a breach of the Exparte applicant's rights to fair hearing, fair administrative action, freedom and security of the person of the Exparte applicant; and Exparte applicant's right to liberty, freedom of movement and secure protection of the law;
5) That the court to be pleased to order for Compensation to the Exparte applicant for the inconvenience & stress caused leading to his continued illegal stay in prison beyond his due date for release of the 29th April, 2024 and for the violation of the Exparte applicant's right to liberty and fundamental freedoms to be assessed by the Honourable court & awarded to the Exparte applicant.
6) That the Respondents generally and the 2nd Respondent to be specific, to be condemned to bear the costs of the Application.
2. The application is supported by a Statutory statement dated 24th June, 2024 and Verifying Affidavit of Mohamed Abdi Ali sworn on even date.
3. It is the Applicant’s case that he is a Kenyan medical doctor who graduated in 2015 and was interning at Makueni County Referral Hospital, was arrested on April 29, 2016, and jointly charged with his wife and two others in Criminal Case No. 835 of 2016; while all co-accused, including his wife, were granted bond, he remained in custody throughout the trial and beyond his conviction and sentencing in April 2024 due to a directive from the Ministry of Interior.
4. He deposes that he charged with eight counts, acquitted on three, and convicted on five, receiving a 12-year concurrent sentence from the date of his arrest (April 29, 2016); although he was due for release in April 2024 after remission, the DPP filed a last-minute urgent application (Misc. Crim. App. No. E122 of 2024) seeking to block his release, resulting in Exparte stay orders based on a letter from the Cabinet Secretary alleging lack of remorse and a biological warfare threat claims which he contests as unsubstantiated and procedurally unfair.
5. The Applicant expresses shock and dismay at the Director of Public Prosecution’s (DPP) conduct and he accuses the DPP of misleading the court by initiating legal proceedings only to abandon them in favor of an administrative process denying him remission without his participation or right to be heard.
6. He further argues that there is a conflict of interest involving the Commissioner of Prisons acting as a courier for the DPP’s letter denying remission, despite the trial court’s findings that he showed remorse, had no disciplinary issues in prison, and was cooperating with counter-terrorism efforts, thus disputing the DPP’s claims that he was not remorseful or reformed.
7. The Applicant denies the Cabinet Secretary's and ODPP’s baseless claims that he planned an anthrax attack, pointing out that no such evidence was presented during his trial, and argues that the ODPP failed to raise any issues regarding his remorse or reform during mitigation or seek prison reports before filing a last-minute application to stay his remission and release; he condemns these administrative maneuvers as unlawful, lacking due process, violating his constitutional right to a fair hearing under Article 47, and calls for the denial of remission orders to be declared null and void.
8. The Applicant filed written submissions dated 29th May, 2024.
9. The Applicant challenges the 1st Respondent’s directive dated 24th April 2024, which he asserts deprived him of his remission rights based on a questionable letter from the Director of Public Prosecutions dated 23rd April 2024.
10. It is contended that this action was arbitrary, illegal, ultra vires, and violated his constitutional rights to a fair hearing, fair administrative action, and natural justice.
11. It is his submission that he was convicted on five counts in a terrorism-related case after eight years in custody, he had expressed remorse and reformed behavior during sentencing, and disputes the unfounded allegations of planning an anthrax attack, which were never supported by evidence or charges, describing such claims as baseless and defamatory tactics by the ODPP.
12. He further submits that in Miscellaneous Criminal Application No. E112 of 2024, the Director of Public Prosecution (DPP) did not initially seek Exparte orders, yet the court nonetheless issued adverse Exparte orders on April 25, 2024, staying the Applicant’s remission and release without his input. The hearing was scheduled for April 29, 2024, the Applicant’s original release date prompting the Applicant to file opposition grounds alleging the DPP’s application was a vendetta during the hearing, the DPP unexpectedly introduced an affidavit and a Cabinet Secretary’s letter not previously served to the Applicant or court, causing an adjournment to allow proper service.
13. It is contended that the affidavit from the Commissioner of Prisons did not recommend denial of remission but merely forwarded a letter from the Cabinet Secretary for Interior & National Administration dated 24th April 2024, which denied the Applicant’s remission based on the ODPP’s unproduced and undisclosed letter alleging the Applicant was unremorseful, unreformed, and a public security threat without evidence or reports to substantiate such claims; despite the Applicant’s scheduled release on 29th April 2024, the ODPP withdrew its court application after achieving its objective through this administrative directive, thereby circumventing due process and denying the Applicant the right to be heard, amounting to an abuse of judicial process and breach of natural justice.
14. The Applicant argues that the denial of his remission was arbitrary, unlawful, and a clear violation of his rights to fair hearing, fair administrative action, and natural justice and despite the 1st, 3rd, and 4th Respondents acknowledging receipt of his pleadings, they failed to file any response.
15. The Applicant contends that the Director of Public Prosecution (ODPP) wrongly influenced the Cabinet Secretary’s decision, even though the ODPP is not the proper authority to assess his remorse, reform, or threat level.
16. The Kenya Prison Service (4th Respondent) was merely used as a courier to deliver the Cabinet Secretary’s letter, enabling the ODPP to bypass due process and justify keeping him imprisoned in a vengeful and discriminatory manner.
17. It is the Applicant’s submission that during the original trial (MCCR No. 835 of 2016), he expressed remorse and was recognized as a first-time offender. The trial court acknowledged the following:
i. The offences consisted of the collection of information as opposed to collection of weapons;
ii. There was no injuries, bloodshed or death that occurred as a result of the offences preferred;
iii. The accused (Exparte Applicant) had shown remorse and willingness to reform. It was submitted that the accused has held several meetings with the National Counter Terrorism Centre and that he had denounced all his previous associations;
iv. The accused is a young man, who had a budding medical career, was recently married to the 2nd accused person prior to his arrest. He pleaded to be given a second chance to life;
v. The accused is a first offender who has maintained good behavior while in
vi. remand pending or awaiting trial.
18. The Applicant asserts that the 2nd Respondent attached two unrelated charge sheets referencing different individuals, Somali nationals unconnected to the Applicant, a Kenyan revealing a clear attempt to tarnish the Applicant’s reputation without basis. Additionally, he argues that the 4th Respondent has not provided clarity on alleged incidents in these attachments, which occurred in prisons and times unrelated to his case, further exposing the 2nd Respondent’s unfounded and malicious intentions.
19. It is also his case that has filed a separate appeal (HCCRA No. E046 of 2024) against his conviction and sentencing on other counts, which was scheduled for mention on 6th March 2025.
20. He states that having successfully stayed the Applicant’s release and remission via Misc. Criminal Application No. E122 of 2024, they later advised the Applicant that the proper remedy was a judicial review at the High Court then on 20th November 2024, the 2nd Respondent then suggested the Applicant was in the wrong forum and should pursue judicial review in the High Court Criminal Division, citing their pending criminal appeal.
21. This contradictory stance has unnecessarily dragged him into protracted legal battles, adversely affecting his mental, social, emotional wellbeing, and liberty.
22. It is his submission that upon his admission to prison on 22nd April 2024, following a 12-year sentence running concurrently from his arrest date (29th April 2016), he was entitled under section 46(2) of the Prisons Act to remission as a matter of right, credited from the start of his sentence. However, on 24th April 2024, the 1st Respondent (Cabinet Secretary) issued a late letter denying this remission, influenced by the 2nd Respondent, relying on unsubstantiated claims that the Applicant was not remorseful, had not reformed, and posed a security threat.
23. According to him, the letter wrongly cited section 26(4)(b) of the Prisons Act, which governs prison officers’ roles but is irrelevant to remission decisions.
24. He maintains that prior to this, he had no disciplinary charges, was not informed of any grounds for denial, and was denied a hearing, violating natural justice and rendering the denial arbitrary, ultra vires, and illegal.
25. It is his case that continued detention beyond 29th April 2024 amounts to false imprisonment, justifying claims for compensation.
26. Reliance is placed in Reg v Gaming Board, Ex P Benalim, (1970) 2 QB 417 at p 430, letter B, where the court held:
“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply nor as to their scope and extent. Everything depends on the subject matter…At one time it was said that principles only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v Baldwin 1984 AC 40”
27. The Applicant submits that hat the principle of natural justice applies wherever a reasonable person would expect fairness in decision-making that affects others. In this case, any reasonable observer would expect the Cabinet Secretary to act fairly when deciding whether to deny an inmate remission earned under the Prisons Act. Such a decision should be based on credible reports, likely prepared by the Officer-in-Charge of Kamiti Main Prison and relevant security agencies, including but not limited to the National Intelligence Service (NIS).
28. In Souza v Tanga Town Council [1961] E A 377 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223, the courts distinguished judicial from executive acts, noting that courts only intervene in executive actions if there is a clear contravention of the law. Lord Greene MR emphasized that discretion must be exercised reasonably, meaning the decision maker must consider relevant factors and exclude irrelevant ones, avoiding decisions so unreasonable that no sensible person would accept them.
29. It is posited that the Cabinet Secretary was required to afford him a fair hearing before making a decision to deny remission. This includes considering any adverse reports alongside the inmate’s response. Importantly, the inmate is entitled to release upon completing the lawful sentence, and continued detention based on subjective assessments of remorse or risk is unlawful.
30. In R v Hull Prison Board of Visitors Exparte St Germain (1979), the Court of Appeal affirmed that even internal disciplinary matters are subject to judicial review unless expressly excluded by statute which the Prisons Act does not do.
31. Thus, the Applicant argues that the Cabinet Secretary was obligated to inform the Exparte Applicant of the allegations, allow time to respond, consider his defense, and demonstrate fair consideration. The absence of a formal inquiry under Section 46(4)(b) does not excuse procedural unfairness. To suggest otherwise undermines the rule of law and the courts’ duty to protect individual rights.
32. He invokes Section 53 of the Prisons Act, which provides that no prisoner can be punished for a prison offense without being given the opportunity to hear the charges and present a defense. This principle of natural justice applies to any administrative act depriving an inmate of remission, including for minor or aggravated offenses.
33. It is therefore questioned whether the Rules of Natural Justice were followed by the Cabinet Secretary in making the decision. Such rules may require an inquiry where the accused understands the charges and can present a defense. Alternatively, an investigation by officers whose findings are reviewed by the decision-maker—after giving the affected person a chance to respond—may suffice, even if the person is absent at the final decision.
The Respondents’ case;
34. Despite being granted an opportunity to file its responses and submissions, the Respondents have not complied with the court orders. All that the Respondent did despite being given opportunities to upload their responses on CTS was to write an email which does not amount to filing.
Analysis and determination;
The following to be the issues for determination;
1) Whether or not this court has jurisdiction.
2) To whether or not the applicant is entitled to the reliefs sought.
35. In the case of Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the supreme court pronounced itself on jurisdiction thus [paragraph 68]:
“(68) A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which Is conferred upon it by law. We agree with counsel for the first and second Jurisdiction to entertain a matter before it, is not one of mere procedural Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, Commission (Applicant), Constitutional Application Number 2 of 2011. Where they cannot expand its jurisdiction must operate within the constitutional limits. It confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, court or tribunal by statute law." (Emphasis provided) where it quoted with approval the oft cited case of Owners of Motor Vessel 'Lillian S' v Caltex In Re The Matter of the Interim Independent Electoral Commission where the Court stated: - "[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14): “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step."(underlining supplied) [30] The Lillian 'S' case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution." The application as drawn and filed grossly violates the provisions of Order53 Rule 2 of the Civil Procedure Rules, 2010 in that 'Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such a shorter time period as may be prescribed by the Act. Section 9(3) of the Law Reform Act provides that in “In case of an application for an order of certiorari to remove any judgement, order, decree, conviction or any other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree” Whether the application is entitled to the leave as sought All Applications for leave to institute proceedings for certiorari ought to be made within 6 months from the date of the decision which the Applicant desires to have quashed. Order 53 Rule 2 of the Civil Procedure Rules stipulates that applications for Judicial Review Orders such as of Certiorari have to be brought within the period of 6 months. The said rule provides; “Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
36. In order to determine whether the court has jurisdiction I have identified a couple of instrumental arguments from the Applicant’s case which leads this court to conclude that the High Court Criminal Division has the proper jurisdiction to preside over this suit.
37. For instant,he deposes that he charged with eight counts, acquitted on three, and convicted on five, receiving a 12-year concurrent sentence from the date of his arrest (April 29, 2016); although he was due for release in April 2024 after remission, the DPP filed a last-minute urgent application (Misc. Crim. App. No. E122 of 2024).
38. The Applicant expresses shock and dismay at the Director of Public Prosecution’s (DPP) conduct and he accuses the DPP of misleading the court by initiating legal proceedings only to abandon them in favor of an administrative process denying him remission without his participation or right to be heard.
39. He further argues that there is a conflict of interest involving the Commissioner of Prisons acting as a courier for the DPP’s letter denying remission.
40. The Applicant denies the Cabinet Secretary's and ODPP’s baseless claims that he planned an anthrax attack, pointing out that no such evidence was presented during his trial, and argues that the ODPP failed to raise any issues regarding his remorse or reform during mitigation or seek prison reports before filing a last-minute application to stay his remission and release.
41. The Applicant challenges the 1st Respondent’s directive dated 24th April 2024, which he asserts deprived him of his remission rights based on a questionable letter from the Director of Public Prosecutions dated 23rd April 2024.
42. It is his submission that he was convicted on five counts in a terrorism-related case after eight years in custody, he had expressed remorse and reformed behavior during sentencing, and disputes the unfounded allegations of planning an anthrax attack, which were never supported by evidence or charges, describing such claims as baseless and defamatory tactics by the ODPP.
43. The Applicant argues that the denial of his remission was arbitrary and unlawful.
44. It is the Applicant’s submission that during the original trial (MCCR No. 835 of 2016), he expressed remorse and was recognized as a first-time offender. The trial court acknowledged the following:
i) The offences consisted of the collection of information as opposed to collection of weapons;
ii) There was no injuries, bloodshed or death that occurred as a result of the offences preferred;
iii) The accused (Exparte Applicant) had shown remorse and willingness to reform. It was submitted that the accused has held several meetings with the National Counter Terrorism Centre and that he had denounced all his previous associations;
iv) The accused is a young man, who had a budding medical career, was recently married to the 2nd accused person prior to his arrest. He pleaded to be given a second chance to life;
v) The accused is a first offender who has maintained good behavior while in remand pending or awaiting trial.
45. It is the Applicant’s case that during the mention on 20th November 2024, the 2nd Respondent argued that this Court lacked jurisdiction to grant the sought orders, insisting the matter be transferred to the High Court Criminal Division where they have filed an appeal (HCCRA No. E047 of 2024) against his discharge/acquittal on certain counts. The appeal was set for mention on 13th February 2025.
46. Though the Respondent has not raised the issue of jurisdiction, this court can raise it. In so holding I am guided by the case of Harun Meitamei Lempaka vs Lemanken Aramat & 2 Others [2014] eKLR the Supreme Court cited with approval decided cases affirming that it is firmly settled law that issues of jurisdiction or competence of a court to entertain or deal with a matter before it is very fundamental. It is a point of law and therefore, a rule of court cannot dictate when, and how, such point of law can be raised.
47. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any court including this Court. The apex court proceeded to state as follows:
“(176) Consequently, where such a jurisdictional question is raised, a challenge of parties being bound by their proceedings cannot rightly lie. The law is the preserve of the courts which courts take judicial notice of. A party does not have a ‘monopoly’ of the law. The court does have this monopoly as it applies the law to a set of facts in reaching its decision. Hence, a court of law can rightly raise a legal question of jurisdiction even where no party raises such a question.”
48. The Court of Appeal in Barclays Bank of Kenya vs Pyritic Guards Limited [2015] eKLR, confronted with a similar issue stated:
“It is also trite law that a point of law can be raised at any stage, even though not raised before the court of first instance. The Court can also on its own motion raise a point of law at any point and make a determination based on the same even where such point has not been canvassed by the parties. The learned judge did not therefore do anything outrageous by raising the issue of non-compliance with Regulation 79 of Table A of the Companies Act and acting on it.” (Emphasis added)
[37] It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated. Because the question of jurisdiction is so fundamental, a limitation on the authority of the court, it can be raised at any stage of the proceedings by any party or even by the court suo motu. As a matter of practice, this Court has a duty of jurisdictional inquiry to satisfy itself that it is properly seized of any matter before it.
[38] It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
49. This court lacks jurisdiction to preside over this suit.
The 2nd issue:
50. The Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR stated;
“[36] Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
51. Having found that the court lacks jurisdiction, this court must down its tools.
Order;
This suit is hereby transferred to the High Court Criminal Division of the High Court.