Moses VS ODPP Moses VS ODPP

The accused person MOSES DOLA OTIENO has moved to this court on an application for Review of sentence citing the Hon. Chief Justices and President of Supreme Court dated 7^th December 2022 in the Chief Justice directed all High Courts to conduct Revision in deserving cases to afford rehabilitation of offenders and achieve overall prison decongestion.
The applicant has invoked the jurisdiction of this court citing Articles 159 (2), 165(3) and (7) as well as Sections 162 and 164 of the Criminal Procedure Code.
Two things need to the said about this application and that is, the application in a sense invites this court to exercise the power of Review of its decision in a criminal matter a jurisdiction that is unknown to criminal law and which this court does not have once it has delivered itself on a conviction and sentence in criminal trial.
Secondly the applicant has cited Section 162 and 164 of the Criminal Procedure Code. The two sections do not deal with the matter of sentence but the question of inquiry by court as to soundness of mind of the accused and the procedure applicable where a person of unsound mind is subsequently found capable of making a defence.
The applicant’s application is thus premised on the wrong provisions of the law to that extent.
The court must however turn to the question, how is the High Court then to give effect to the Chief Justice’s directive without offending the law.
It is the view of this court that the court must resort to the provisions of Article 165 (3) (d) (II) of the Constitution of Kenya which provides:-

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

The directive by the Chief Justice was given out of a realization that there are persons whose continued detention in prison may not help in the attainment of the purpose of rehabilitation and whose cases merit review from time to time.
The Constitution under Article 159(2) (a), (d) permits courts to intervene in matters where the action of the state is aimed at furthering the purposes and principles of the Constitution.
The courts are mandated to ensure that the stated purpose are principles of the constitution are promoted and protected.
The court in doing so is not expected to exercise its power rigidly or be unnecessary limited in its exercise of jurisdiction by undue technicalities of procedure.
It is on the basis of this that this court has elected to deal with the applicants. Application purely based on the exercise of this court’s jurisdiction under Article 165(3).
one of the purposes of the constitution of Kenya 2010 is to nurture and protect the wellbeing of the individual, the family, communities and the nation, as expressly stated in the preamble of the constitution.
The Kenyan people aspire to have a government based on the essential values of human rights equality, freedom, democracy, social justice and the rule of law.
The rehabilitation of prisoners resonates very well with the aspirations of Kenyans.
The prison facilities are meant to ensure that the objective of rehabilitation is achieved during the period a person is held in the facilities.
The system of law in our country must be able to permit those that reform in the course of time to be able to be released from custody to rejoin the society and be reintegrated if the objective of rehabilitation is to be realized.
The applicant informed this court that he has served the better part of his 10 year prison term and is due for release in July this year.
The applicant has since incarceration undertaken studies including the study of law which he says he is keen on pursuing once he leaves prison. The applicant intends to commence his studies in July 2025 at Strathmore University.
The applicant went to prison at the young age of 29 years. He will turn 43 years of age in October 2025. Quite clearly he has spent a very crucial portion of his youth life in prison.
The applicant has unequivocally told this court that he regrets his actions and has learnt very useful lessons throughout the period he has been in custody. He states that he is now reformed and is willing to change for the better if this court allows him another opportunity in life.
This court has carefully considered his plea for early release. He has indeed made a very compelling case for release considering that he has expressed deep remorse for the loss of the deceased’s life.
The court takes cognizance of the fact that the deceased and the applicant had a child who has not had the benefit of enjoying parental love. It is a factor that this court has taken into account and as a result this court is inclined to grant the prayer for early release.
It is a case of tampering justice with mercy. It is the hope of this court that the applicant shall find a way of making his son understand why the mother lost her life in his hands. It is not an easy task and the families of the accused and that of the deceased must help the applicant and his son overcome the loss.
The death was highly regrettable but since the applicant has served the better part of his sentence, the remaining 4 months may not make much of a difference. The applicant has learnt the things he must never do in his life hopefully.
Consequently, this court allows the applicants application and his term of imprisonment is reduced to the period already served.
The applicant shall be immediately released from prison unless otherwise lawfully held.
It is so ordered.