1. The Petitioner herein is serving a ten-year sentence for the offence of occasioning a person grievous harm contrary to section 234 of the Penal Code. He has now filed the instant petition seeking for orders that he be released on parole pursuant to the provisions of section 49 of the Prisons Act Cap.90 Laws of Kenya.
2. The grounds in support of the petition are that the petitioner has served “two to two thirds” of his sentence. However, that Kenya does not have a National Parole Board and Parole Regulations and therefore that the Respondents have failed to bring section 49 of the Prisons Act into conformity with the Constitution of Kenya. That failure by the Respondents to establish the National Parole Board and to put the Parole Regulations in place is discriminatory and a breach of Article 27 of the Constitution of Kenya and a denial of rights enshrined under the Bill of Rights.
3. Section 49 of the Prisons Act provides as follows:
Release on parole
(1) Within three months of the date upon which a prisoner serving a sentence of or exceeding four years is due for release, the Commissioner may allow such prisoner to be absent from prison on parole for such length of time and upon such conditions as the Commissioner may specify.
(2) The Commissioner or an officer in charge may at any time recall a prisoner released on parole.
(3) Any prisoner who fails to return to prison in accordance with the conditions of his parole or when informed that he has been recalled under subsection (2) of this section may be arrested without warrant, and he shall be guilty of an offence and liable to the same punishment as if he had escaped from prison.
(4) A prisoner who, when released on parole, contravenes or fails to comply with the conditions imposed upon him shall be guilty of an offence and liable to imprisonment for a term not exceeding six months.
4. The Petitioner argues that the said section denies prisoners the right to be released on parole. That the section is discriminatory and unconstitutional. The Petitioner urged the court to find that there is need in Kenya to implement the parole system. He all the same asked this court to order the Respondents to consider releasing him on parole in compliance with the provisions of section 49 of the Prisons Act.
5. I have considered the Petition and the grounds adduced in support of the same. The Petitioner has filed this constitutional petition alleging violation of his rights under Article 27 of the Constitution of Kenya 2020. He argued that Section 49 of the Prisons Act is discriminatory as it does not permit serving prisoners like himself to be released on parole.
6. The operative principle in a constitution petition was laid down in the case of Anirita Karimi Njeru –Vs- Attorney General (1979) KLR 154 which set the principle that a petitioner seeking reliefs through a constitutional petition on the basis of violation of the constitution must set out with reasonable degree of precision that which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.
7. The same principle was emphasized by the Supreme Court in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was stated that:-
“[349] Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
8. Though the Petitioner has in his petition quoted several articles of the Constitution, he has not set out with reasonable degree of precision that which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed. What I have set out above is what I can glean from the petition. The Petitioner seeks for orders that he be released on parole under section 49 of the Prisons Act yet he at the same time concedes that the section is not applicable in his case. It is clear that the section applies only on prisoners who have less than 3 months to complete their sentence. Him he has more than 6 years to serve before he is released.
9. Further to the above, the Petitioner has sued the Director of Public Prosecutions, the Attorney General and the National Review Board but he does not state the role of each party in the case. There is no evidence that the Attorney General and the National Review Board were served in the petition. Moreover, he has not sued the Prisons Service yet it is the institution which is holding him.
10. It seems to me that the petitioner wanted to challenge the provisions of section 49 of the Prisons Act. He however did not set out in a clear manner the declarations that he seeks in respect to the said section. In Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR , the court stated as follows:
“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication; a person claiming constitutional infringement must give sufficient notice of the violations to allow her adversary to adequately prepare her case and to save the court from embarrassment on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are too insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional Petitions. Neither does it require talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the Respondents in a constitutional petition are fashioned in a way that gives proper notice to the Respondents about the nature of the claims being made so that they can adequately prepare their case.”
11. I find that the petition herein fails this test. The court cannot fashion out a proper remedy due to deficiency in the pleadings.
12. In view of the foregoing, it is my finding that the petition does not meet the threshold of a constitution Petition as laid down in the case of Anarita Karimi Njeru (supra). The petition is accordingly dismissed.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Oluoch for Respondent
Petitioner - present
Court Assistant – Ms Rahma
2. The grounds in support of the petition are that the petitioner has served “two to two thirds” of his sentence. However, that Kenya does not have a National Parole Board and Parole Regulations and therefore that the Respondents have failed to bring section 49 of the Prisons Act into conformity with the Constitution of Kenya. That failure by the Respondents to establish the National Parole Board and to put the Parole Regulations in place is discriminatory and a breach of Article 27 of the Constitution of Kenya and a denial of rights enshrined under the Bill of Rights.
3. Section 49 of the Prisons Act provides as follows:
Release on parole
(1) Within three months of the date upon which a prisoner serving a sentence of or exceeding four years is due for release, the Commissioner may allow such prisoner to be absent from prison on parole for such length of time and upon such conditions as the Commissioner may specify.
(2) The Commissioner or an officer in charge may at any time recall a prisoner released on parole.
(3) Any prisoner who fails to return to prison in accordance with the conditions of his parole or when informed that he has been recalled under subsection (2) of this section may be arrested without warrant, and he shall be guilty of an offence and liable to the same punishment as if he had escaped from prison.
(4) A prisoner who, when released on parole, contravenes or fails to comply with the conditions imposed upon him shall be guilty of an offence and liable to imprisonment for a term not exceeding six months.
4. The Petitioner argues that the said section denies prisoners the right to be released on parole. That the section is discriminatory and unconstitutional. The Petitioner urged the court to find that there is need in Kenya to implement the parole system. He all the same asked this court to order the Respondents to consider releasing him on parole in compliance with the provisions of section 49 of the Prisons Act.
5. I have considered the Petition and the grounds adduced in support of the same. The Petitioner has filed this constitutional petition alleging violation of his rights under Article 27 of the Constitution of Kenya 2020. He argued that Section 49 of the Prisons Act is discriminatory as it does not permit serving prisoners like himself to be released on parole.
6. The operative principle in a constitution petition was laid down in the case of Anirita Karimi Njeru –Vs- Attorney General (1979) KLR 154 which set the principle that a petitioner seeking reliefs through a constitutional petition on the basis of violation of the constitution must set out with reasonable degree of precision that which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.
7. The same principle was emphasized by the Supreme Court in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was stated that:-
“[349] Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
8. Though the Petitioner has in his petition quoted several articles of the Constitution, he has not set out with reasonable degree of precision that which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed. What I have set out above is what I can glean from the petition. The Petitioner seeks for orders that he be released on parole under section 49 of the Prisons Act yet he at the same time concedes that the section is not applicable in his case. It is clear that the section applies only on prisoners who have less than 3 months to complete their sentence. Him he has more than 6 years to serve before he is released.
9. Further to the above, the Petitioner has sued the Director of Public Prosecutions, the Attorney General and the National Review Board but he does not state the role of each party in the case. There is no evidence that the Attorney General and the National Review Board were served in the petition. Moreover, he has not sued the Prisons Service yet it is the institution which is holding him.
10. It seems to me that the petitioner wanted to challenge the provisions of section 49 of the Prisons Act. He however did not set out in a clear manner the declarations that he seeks in respect to the said section. In Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR , the court stated as follows:
“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication; a person claiming constitutional infringement must give sufficient notice of the violations to allow her adversary to adequately prepare her case and to save the court from embarrassment on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are too insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional Petitions. Neither does it require talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the Respondents in a constitutional petition are fashioned in a way that gives proper notice to the Respondents about the nature of the claims being made so that they can adequately prepare their case.”
11. I find that the petition herein fails this test. The court cannot fashion out a proper remedy due to deficiency in the pleadings.
12. In view of the foregoing, it is my finding that the petition does not meet the threshold of a constitution Petition as laid down in the case of Anarita Karimi Njeru (supra). The petition is accordingly dismissed.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Oluoch for Respondent
Petitioner - present
Court Assistant – Ms Rahma