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Judgmentmohammed omar mwatabu VS The Republic2 min read

mohammed omar mwatabu VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NO E359 OF 2020  IN THE CHIEF MAGISTRATE’S COURT AT MOMBASA (AND HI))GH COURT CRIMINAL APPLICATION NO. E078 OF 2021.)

  1. The Applicant was charged and convicted after a full trial for the offence of Trafficking in Narcotics contrary to Section 4(a) of the Narcotics and Psychotropic Substances Control Act No. 4 of 1994 and sentenced to 10 years imprisonment on 12th August, 2021. The Applicant lodged an appeal to the High Court at Mombasa vide HCCRA No. E078 of 2021 where the conviction and sentence often (10) years was affirmed. The Applicant sought the following orders:-
    1. Spent.
    2. THAT, may the Hon. Court be pleased to grant orders that the period spent in remand custody be computed into the ten (10) year sentence awarded by the High Court pursuant to the provisions of section 333(2) of the Criminal Procedure Code and also pursuant to “Jona & 87 others – Versus - Kenya Prison Service & 2 others (Petition 15 of 2020)[2021]KEHC 457 (KLR)”.
    3. THAT, should the eventual computation result into a balance of three (3) years or less, may the Honourable Court be pleased to grant me probation orders if his circumstances so fit.
    4. ANY OTHER order that the Honourable Court deems fit to give in the interest of justice.
    5. THAT, further grounds shall be adduced in the sworn supporting affidavit of MURAD FARRIS SAID among other grounds to be adduced during the hearing of this application.
  2. The time spent in remand custody was computed into the sentence awarded by the High Court. After the prison had deducted its remission pursuant to section 46 of the Prisons Act Cap 90, from the sentence imposed by the trial court, the remaining term was sufficient for him to be placed under probation pursuant to section 4 of the Probation of Offenders Act since his expected of release is 10th July, 2027. He had less than three years to the expiry of his prison sentence. According to him he was remorseful, well rehabilitated and ready to be integrated back to the society and promised to be a role model to the society if given a second chance. He prayed for the court to grant him probation orders.
  3. I have considered the Sentence Review Report I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with the time already spent  in custody  a probation sentence of  of 3 years to be supervised by the Mombasa Probation Office.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……25th.…………DAY OF ………………FEBRUARY………..…….., 2025.

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……MS CHEROP……………..……………State Counsel;

………………………………………….…Applicant

    mohammed omar mwatabu VS The Republic mohammed omar mwatabu VS The Republic