Article by Kim K. Caesar assisted by Dr Ken Wyne Mutuma
Introduction to Reuben Figalo Case
Can Courts yield to humanitarian considerations when vacating custodial sentences? If so, should such termination be applied to all crimes, including felonies? These questions lie at the centre of a recent judgment delivered on 28th February 2025, where the High Court of Kenya at Vihiga the matter of Reuben Figalo v The Director of Public Prosecutions [2025]eKLR granted the release of the petitioner, a 67-year-old inmate suffering from prostate cancer, prematurely before the lapse of his 15-year sentence.
Background of the Case
Reuben Figalo, convicted of defilement and serving a 15-year sentence at Kakamega G. K Prison, petitioned the Court arguing that his incarceration under deteriorating medical conditions constituted cruel, inhuman and degrading treatment. Figalo, diagnosed with prostate cancer in 2022 and further afflicted by a painful scrotal swelling, contended that the prison authorities were unable to provide him with adequate medical care, a proper diet, or the privacy required to manage his condition.
Supporting evidence from medical professionals at Vihiga County Referral Hospital and Prison medical officers detailed Figalo’s dire health status and the urgent need for specialized care. His daily struggle included coping with a catheter and an attached urine bag, which he had the trouble of emptying every time. His condition not only made him uncomfortable but also affected his fellow prisoners and the prison staff.
The petitioner’s case was primarily grounded on three constitutional provisions. The first one was article 28 on the right to dignity. The second provision was under article 43 on the right to the highest attainable standard of healthcare. Thirdly, he relied on article 57 of the Constitution of Kenya 2010, which mandates the State to take measures to ensure that older persons live in dignity and respect and free from abuse.
The Court’s Decision
The Court ventured into determining whether the custodial sentence prejudiced his constitutional rights to dignity and the highest attainable standard of healthcare. The court noted that indeed, from the medical evidence before it, the petitioner’s condition was extremely dire. It also averred that the prison had proved incapable of managing his condition – which became a nuisance to the rest of the prisoners and the staff.
The gravamen of the Court’s analysis was premised under the Sentencing Policy Guidelines 2023. These guidelines require that sentences imposed on terminally ill and elderly offenders be balanced against their capacity to endure custodial conditions without undue hardship. The guidelines address two limbs on the same. First, the state of the terminally ill or elderly offender and secondly, the capacity of the prison and prisoners to take care of the offender. The Guidelines also mandate courts to consider the extent of the illness or age of the offender in light of the crime they committed so that they impose a sentence that is not inhumane, degrading or cruel.
Based on the evidence tendered, the Court found that continued incarceration not only endangered the petitioner’s life but also imposed an undue difficulty on the prison to manage his situation. Kamau J emphasized that while the gravity of the crime necessitated a custodial sentence, the state’s responsibility to safeguard constitutional rights could not be overlooked. The judgment acknowledged that, indeed, the prison’s inability to provide proper care rendered Figalo’s continued stay a violation of his fundamental rights. The upshot of the court’s reasoning was that, in such exceptional circumstances, the principles of reformation and rehabilitation must yield to humanitarian considerations, particularly when a prisoner’s health is at risk. Kamay J rendered himself thus:
In the mind of this court, the objective of sentencing on reformation and rehabilitation had to be balanced against the need to properly care for the elderly and the cost of providing for such care, in custody. It was clear that the continued incarceration of the Petitioner herein would amount to inhuman and degrading treatment, at an unreasonable cost on the facility of the Prison which came from taxpayers and sap the goodwill and energy of other inmates who were already struggling with their own unique challenges.
The court also considered alternative sentencing options, such as non-custodial sentences. It noted that the offence of defilement was not eligible for non-custodial sentencing. Even so, had it considered it, the option would be inconceivable, given the deteriorating condition of the petitioner. It thus ruled out the alternatives as unfeasible. The High Court ordered Figalo’s immediate release from custody unless he was held for another lawful cause.
Key Takeaways from the Case
(i) Rights of Prisoners versus Custodial Sentences
This was the main theme from the judgment. It underscores the principle of proportionality in sentencing. The Court, in this regard, reasoned that the petitioner’s medical condition deteriorated by the day, and the severity of his condition outweighed the state’s duty to incarcerate him. In any event, the state had proven incapable of sustaining him.
An equally interesting alternative would be a strict legal positivist approach which would have held the petitioner in prison to serve his term until the end. Given the nature of his offence, the petitioner proved a threat to society. The objective of a custodial sentence to rehabilitate him may not have been achieved, given that his sentence term had not lapsed.
The gravity of his offense raises compelling questions. Did the Court sufficiently consider the victim of his heinous crime? Would the release impeach their right to justice? Did the court overlook the fact that his release did not guarantee an improved or ‘dignified’ condition? Does the case open a valve for more petitions? What will be the implication of those petitions to the criminal justice system?
(ii) The obligation of the state to take care of prisoners
The case also exposed the conditions that prisoners face, exposing the systemic inadequacies of prisons in taking care of them. It serves as an awakening call to the State to better standards of correctional facilities, especially in accommodating those who are old and chronically ill. The state has to ensure that they receive adequate and proper treatment, that their conditions are well attended to and that they serve dignified sentences. This is to reinforce the objective of custodial sentences to rehabilitate the prisoners and not to punish them.
(iii) “A Lawyer when Needed”
This case also exemplifies the role of lawyers in their duty to society in two fronts: the role of the bench and the role of the bar. ‘A Lawyer when Needed’ is a book by Elliott E. Cheatham and part of the James S. Carpentier Lectures series. Prof. Cheatham assesses the legal practitioners’ five imperative duties: the duty to the hated, the poor, the middle classes, duty for specialized legal services, and the public interest.
He emphasizes that it is a moral obligation for lawyers to defend the rights of these classes of people and provide their expertise in ensuring justice is served. Through such, the lawyer reshapes political and social institutions so that they maximally achieve their social ends.
Additionally, he cites the foreword by Elihu Root in Heber Smith CJ’s ‘Justice and the Poor’ (1919), emphasizing the government’s (Judiciary in this case) role too in securing justice as follows, “The highest obligation of government is to secure justice for those who, because they are poor and weak and friendless, find it hard to maintain their own rights.” People like Figalo are often marginalized in the society and in the interest of their justice, lawyers are often called upon to secure them.
The significance of this was laid in the final paragraph, where the court graciously thanked the services of counsel for the petitioner in the following terms:
This court wishes to sincerely thank Mr Obwatinya, Advocate for having taken up this matter on a pro bono basis to ensure that none of the provisions of the Constitution of Kenya, 2010 in relation to the Petitioner herein were violated, contravened and/or infringed upon.
Conclusion
The Reuben Figalo case sets a significant precedent on the release of terminally ill prisoners. The judgment invokes different thoughts on the legal and ethical implications of the case. Importantly, it upholds the constitutional provisions on human rights and how they are balanced with other competing interests.
