The AG wanted the court to set aside or stay the January 18 judgment pending the determination of his petition for a review because the case was not defended by the State.

But Justice George Odunga declined the request, saying evidence showed the State was afforded an opportunity to be heard but the Attorney-General failed to file its response to the petition filed by 88 inmates.

Lack of the State's participation, he said, resulted from inaction by the Attorney-General.

Evidence showed that the inmates, led by Vincent Sila Jona, furnished the Kenya Prisons Service with court documents.

But the Prisons Service failed to provide the Attorney-General with instructions that would have enabled him to respond to the petition.

“It cannot therefore lie in the mouths of the applicants to contend that they were denied an opportunity of being heard. There is no explanation at all why the applicants did not seek the court's indulgence to have the time for filing their response enlarged in order to file their responses,” Justice Odunga said.

He ruled that the failure of the Office of the Attorney-General to file a response was based on its inaction to robustly defend claims brought against the government.

Huge relief to prisoners

The inaction, the judge said, must be seen as a dereliction of duty and a failure to effectively undertake its mandate as expected under the Constitution.

“In this case the Office of the Attorney-General is the Chief Legal Adviser to the Government of the Republic of Kenya. That office is held in trust for the people of the Republic of Kenya,” Justice Odunga said.

“It follows that the said office is not just like any other chambers of an advocate. The Office of the Attorney-General bears a much heavier weight than that of a private firm of advocates.”

For that reason, he said, the AG's office is expected to be efficient in carrying out its mandate as it is funded by taxpayer money.

In the judgment, the court declared that the prison terms of convicts, other than those condemned to death, should incorporate time spent in remand.

The court ruled that trial courts are enjoined by section 333(2) of the Criminal Procedure Code in imposing sentences, other than the sentence of death, to take into account the period spent in custody.

Justice Odunga also declared that prisoners sentenced in violation of that section of the code are entitled to have their sentences reviewed by the High Court in order to determine their appropriate sentences.

He also said that computing time applies to the original sentence as well as the sentence imposed during resentencing.

He also ruled that in determining the admission date of a convict, the relevant date is when the prisoner was first admitted to prison upon conviction and not the date of resentencing.

The rulings came as a huge relief to prisoners, and many, including those who have exhausted their appeals, now have the opportunity to return to court and petition for appropriate sentences.

In their petition, the 88 prisoners said some of them were serving excessive sentences because the time they spent in remand had not been taken into account as required under Section 333(2) of the Code and therefore violating Article 29(d) and (f) of the Constitution.

They argued that the failure to take into account remand time when they were sentence violated their constitutional right to a fair trial.