(ORlGlNATlNG FROM ORIGINAL CR. CASE 1720/2014 IN CM',S COURT AT MOMBASA (HON J. NANG',EA, C.M), HCCR APP NO I0O/20I7 AT MOMBASA (HON A. ONGER IJ) AND C.A CR App NO 52 of 2018 AT MOMBASA (A. V|SRAM, W. KARANJA AND M. K. KOOME JJA)
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.
in a judgment delivered on 24/6/2O17.
2. He appealed that decision in the High Court vides HCCR APP NO. 100 of 2017 in which appeal the conviction and sentence were upheld.
3. He further appealed again in the Court of Appeal vide C.A APP NO. 52/2O18.
4. The sentence was ordered to run from the date of conviction. He submitted that with the reduction of remission, he was supposed to serve 10 years, about 7 years of which he has already served and he is therefore left with about 3 years to serve.
5. He therefore pleads with this Hon. Court to please grant him an order for probation placement for the remaining part of his sentence to allow him to tend to my family as he serves the remaining sentence.
6. He added that in the course of serving the sentence, he has suffered much as he has a spinal cord injury which has made his stay very agonizing, particularly considering the challenges he faces in accessing the requisite medication for the same. . For the said condition he had been referred to an M.R.l for the last over six years, the last one being on 29/7 /2024.
7. This was confirmed by the prison progressive report which shows that the medical officer attending to the said condition had recommended surgery for the same, which surgery may cost Kshs 500,000.The surgery was to be undertaken in 3 months and the prison administration had indicated inability to cater for the said cost, citing lack for the required funds.
8. He had also been diagnosed with Hypertension (HIGH BLOOD PRESSURE), a condition that has compounded the already bad condition in prison.
9. He submitted that The offence in question is one that he regrets strongly and which therefore decries in the strongest terms, promising never to commit another offence in future.
10. According to him he is 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
11 . Section 4(2) of the probation of offenders act cap 64 (revised 2012) states "where any person is convicted of an offence by the high court and the court is of the opinion thot, having regard to the youth , character, precedents, home Surrounding ,health or mental condition of the offender, or the nature of the offence , or to any extenuating circumstance in which , the offence was committed, the court may release the offender on probation . The court may in lieu of sentencing to any punishment, make a probation order , and may require the offender to enter into a recognizance , with or without surety in such sum as the
12. I have considered the prison progression report and the delicate medical condition and I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with a sentence of the time already served and a probation sentence of 2 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 ……30th.…………DAY OF …………APRIL……………..…….., 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;
…Mr Ngiri………………..……………State Counsel;
………………………………………….…Applicant