A Nairobi court has ordered the release and deportation of a Ugandan woman who was serving a 30-year prison sentence for drug trafficking.
High Court Judge Diana Kavedza ruled that keeping Ann Birungi Bisaso in custody while her co-accused was released three years ago violated her constitutional right to equal treatment.
Bisaso, who has served about 15 years of the sentence, successfully challenged her continued imprisonment on grounds of unequal treatment.
“She further asserts that she was denied an opportunity to have her sentence reviewed, thereby infringing her right to a fair trial,” court records show.
She was initially sentenced to life imprisonment, which was later reduced to 30 years.
She was also fined Sh254,893,200. Her co-convict, John Mugisha, who was tried and convicted in the same case, was released in 2023.
“From the record, there is no distinction in their respective circumstances,” court documents show.
Bisaso argued that her continued incarceration had caused her severe psychological distress, stigma and undue suffering.
The state opposed the application, arguing that the release of a co-convict did not automatically amount to discrimination.
However, Justice Kavedza found that the state had failed to demonstrate any difference in the circumstances of the two convicts, including their participation in the offence, culpability or criminal records.
“In the present case, no material has been placed before this court to demonstrate any distinction between the petitioner and her co-accused in terms of their participation in the offence, culpability, antecedents, criminal record or any other relevant sentencing consideration. Both were convicted in the same trial for the same offence,” the judge observed.
“The petitioner, however, continues to serve her sentence despite having been convicted in the same proceedings and for the same offence. The principle of parity in sentencing is well recognised.”
Justice Kavedza noted that the Judiciary Criminal Procedure Bench Book provides that similar sentences should be imposed for identical offences committed in similar circumstances.
“There is, therefore, no discernible basis upon which one offender should continue serving a custodial sentence while the other has already secured his release. To uphold such differential treatment would offend the principle of parity in sentencing and violate Article 27(1) of the Constitution.”
The judge consequently deemed Bisaso’s sentence fully served and ordered her immediate repatriation. The court directed the Ugandan High Commission to meet the costs of her deportation.
Meanwhile, a court in Kisumu has dismissed an appeal by a truck conductor who claimed he was unfairly dismissed after 24 years of service.
Kennedy Odhiambo Otieno sued Nyanza Sugar and Produce Limited in the Magistrates’ Court in Kisumu, alleging that his employment was verbally terminated on May 24, 2024.
“It was his case that he was employed by the respondent as a turn boy in January 2000 and worked till May 24, 2024, when his employment was verbally terminated,” court documents show.
Otieno claimed his manager dismissed him after he demanded better pay and enrolment in the National Social Security Fund and the National Hospital Insurance Fund.
The company, however, maintained that Otieno had only worked as a casual employee and produced a signed certificate of payment showing that he voluntarily left employment on January 9, 2012 after receiving his final dues.
The company argued that Otieno had failed to prove he resumed work after 2012 and urged the court to dismiss the appeal.
In dismissing the original claim, the trial court found that Otieno had failed to prove he remained employed beyond 2012 and held that the documents he presented had no evidential value.
Dissatisfied with the decision, Otieno filed an appeal.
However, Justice Nzioki wa Makau of the Employment and Labour Relations Court in Kisumu found the appeal to be without merit.
“The court is not persuaded that there was an employment relationship beyond January 2012,” the judge ruled.
“The appellant, therefore, seems to have had his employ end in 2012, and he crafted a claim asserting he was employed till 2024. It is inconceivable that having worked from 2000, the appellant was agitating for enrolment in 2024.”
The judge also noted inconsistencies in Otieno’s evidence, observing that he described himself as a loader during testimony while his claim identified him as a turn boy.
Although Justice Makau found that the trial magistrate had applied a higher standard of proof than required by using “without a shadow of doubt” instead of the balance of probabilities test, he held that the correct conclusion had nevertheless been reached.
“The appellant knew he had presented insufficient material to convince the court on a balance of probabilities and yet chose to mount an appeal challenging the sound decision on facts which led to the correct determination of the claim,” the judge ruled.
“The appeal before me is devoid of merit and only fit for dismissal.”
Justice Makau ordered Otieno to pay the costs of the appeal, noting that costs are not automatically awarded to the successful party in employment disputes.
