HAMISI MOHAMED MASHA AND JUMA MOHAMED SHOZI VS The Republic

Court: This matter is placed before me for review of sentence under Article 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
The Lower Court file has been placed before me and I have perused the same.
The offenders pleaded guilty and were each convicted and sentenced on a separate charge of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245) that on 28/3/2024 at Ushindi area, Likoni Sub-County within Mombasa County, each of them was separately found trafficking in narcotic drugs by selling heroin in contravention of the Act.
In the case of Hamisi Mohammed Masha he had 40 satchets of heroin with a street value of KShs 24,000/= and proceeds of KShs 4,115/=.
In the case of Juma Mohamed Shozi he had 20 sachets of heroin with a street value of KShs 15,600/=.
They were sentenced each to a fine of KShs 100,000/= in default to serve 12 months imprisonment.
The offence of trafficking in narcotic drugs is provided for under section 4 of the Narcotic Drugs and Psychotropic Substances (Control Act) as follows:
S. 4. Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable—
(a)  in respect of any narcotic drug or psychotropic substance—
(i) where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment;
(ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;
(b)  in respect of precursor chemicals or any substance, other than a narcotic drug or psychotropic substance, which he or she represents or holds out to be a narcotic or psychotropic substance—
(i) where the person is in possession of 50 mg or more, to a fine of not less than twenty million shillings or imprisonment for life; and
(ii) where a person is in possession of 50 mg or less, to a fine of not less than ten million shillings, or to imprisonment to a term of not less than ten years, or to both such fine and imprisonment.
The punishment for this offence is a mandatory minimum sentence of either a fine or imprisonment depending on the quantity of the narcotic drug trafficked. It is therefore not suitable for a non-custodial sentence or even review to a lesser punishment.
Consequently, I find that the case is NOT suitable for consideration for review of sentence.
This file is closed.
Orders accordingly. 
Directions issued, dated and signed in Chambers this 15th day of November 2024

HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect immediately.