Skip to content
JudgmentThe Republic AND WALTER OTIENO VS8 min read

The Republic AND WALTER OTIENO VS

High Court at Mombasa High Court · · Wendy Micheni

  1. REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. E088 OF 2023

WALTER MURIMI……….……………………………….……. APPLICANT

VERSUS

REPUBLIC ………………………………………………..… RESPONDENT

(ORIGINATING FROM CR CASE NUMBER E109 0F 2023 IN THE SRM’S COURT AT SHANZU ( HON. D. ODHIAMBI – S.R.M) AND MOMBASA HCCAPP NO.  E142 0F 2023)

RULING

Preliminaries

  1. This Honourabe Court is called upon to determine the Notice of Motion filed in court on 11th June, 2024 is brought under Article 22(1) of the Constitution of Kenya. On the face of Notice of Motion the sought leave of the Honourable Court to institute Court proceedings in respect of mitigation of appeal in CR. Appeal No. E088 of 2023 vide CR. No. E109 of 2023 at Chief Magistrate Court at Shanzu and he filed his mitigation appeal which was grounded upon the annexed further by the affidavit of Walter Otieno.
  2. In that affidavit the Applicant stated that he was arrested, charged, tried, convicted and sentenced serve five (5) years’ imprisonment for the offence of being in possession of narcotic drugs contrary to Section 2 as read with Section 3(1)(2) of the Narcotic Drugs and Psychotropic Substance Act No. 4 of 1994. Accordingly the Applicant stated that he was given the right to appeal within 14 days. He lodged a mitigation appeal only on the sentence imposed.
  3. When the application came up for hearing he however urged the court to consider the Notice of Motion. The Applicant filed submissions where he stated that the was arraigned before Court on the charges of being in possession of narcotic drugs contrary to Section 2 as read with Section 3(1)(2) of the Narcotic Drugs and Psychotropic Substance Act No. 4 of 1994.
  4. He further submitted that he pleaded guilty of the charges and hence was convicted on by own plea of guilty to serve 5 years imprisonment. He was given the right to appeal within 14 days and he lodge an appeal only on mitigation of the 5 years sentence imposed.
  5. The Applicant went on to submit that he had had sleepless nights thinking of the life he was leading in Prison and the reason which led to this and regretted greatly. He had also interacted with other inmates with similar or different offences for about 14 months now and as such was now remorseful. He pointed out that the 5 year imprisonment that was imposed on him was still harsh regarding the gravity of the offence and the size and value of the drugs in question (16 rolls at Kshs. 1,120/-) and hence he begged for leniency and or so forgiveness or lesser sentence from this able and Honourable Court of Law.
  6. According to the Applicant he had also come forward begging for a non – custodial sentence so that he may rejoin society acting as an ambassador advocating for drug free society among the youth. This had been triggered by the number of youth he had seen in prison and the long sentences they were serving, the rate at which the youth were being imprisoned was alarming.
  7. He humbly submitted that he was a first time offender, a fact which even the prosecution acknowledged in court before the judgment was delivered. He had never been involved in any criminal activities prior to this offence. He told the court that he had a clean record in the society, to many it was a shock to learn of what had transpired. He urged the Honourable Court to consider his prayer and allow him join the society. He sought for his mitigation appeal on sentence to be allowed and for him to be set at liberty.
  8. A sentence review report dated 17th September, 2024 was prepared by one Mr. Stephen Muthoka showed that the Applicant was 24 years old and was currently at Shimo la Tewa Medium Prison. He had been sentenced on 10th March, 2023 by Hon. Odhiambo at Shanzu Chief Magistrate Court. The source of information from the interview was his mother’s Belinda Kombo, his sister Caroline Adhiambo, the area chief Shanzu and the village elder Mrs Eunice. Other information was obtained from the prison records and reviewing of the court records.
  9. According to the officer, the Applicant hailed from an extended family which has demonstrated willingness to support in his rehabilitation process if considered for a non-custodial sentence. The community members and the family admits and confirms that despite his imprisonment, the inmate has remained in close communication with the family and have frequently visited him. They expressed willingness to accommodate him back and after reintegration and resettlement support as he seeks to compensate the period lost while in custody.
  10. A non-custodial sentence or unconditional release,in their considered opinion will serve a best way for his further rehabilitation as they think that he has suffered enough while in custody and has fully changed. The family offerred to establish his economic source of income and livelihood when released and offer any psychological support as he changes from prison where he has lived for more than 20 months. The family noted that the street value expressed in the charge sheet was barely Kshs 1,120/-.
  11. The matter before court had no direct victim involved when it came for trial. The community administration from where the inmate hails from confirmed that there were no any other known criminal records and that the inmate has learnt his lesson. The community was not opposed to non-custodial sanctions offering to support in rehabilitation and moral support.
  12. According to the officer, it was the prison authorities’ opinion that the applicant inmate to be considered for release or admission to non-custodial sentence as balance of his rehabilitation goals can be achieved outside custody. According to the prison authorities the Applicant was remorseful and regreted his actions, he prayed for mercy from the Honourable Court and forgiveness his family for putting them into a compromise problem. He had no records of prison misconduct and was committed to respecting the law and behave responsibly when released from prison. He had been mentioned as a trustworthy person who has been eager for release.
  13. The recommendations by the officer were that the Applicant was suitable for a non – custodial sentence and review of the sentence meted by the trial court. Further the officer recommended that the Applicant be sentenced to serve 6 months’ community service at Kisauni Probation office.

Analysis and Determination

  1. The only issue for determination herein is whether the Applicant is entitled to the prayers sought in his application. Article 22 of the Constitution deals with the enforcement of the Bill of Rights. Subsection (1) states that every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
  2. The Applicant was charged under Section 3(1) as read with Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act for being in possession of narcotic drugs. Sub section (2) (a) provides for the penalty where the drug charged is cannabis. In the respect where the cannabis is intended for the person’s sole consumption, the penalty is ten (10) years imprisonment and for any other case to imprisonment for twenty (20) years imprisonment.
  3. The facts of the case in this matter were that the Applicant was found in possession of 16 rolls of cannabis and he pleaded guilty to the charge.
  4. The Court’s duty and the object of Section 333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guideline’s (under clauses 7, 10 and 7.11) as follows:

“The provisions to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed.

In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender, the court must take into account the period in which the offender was held in custody during the trial.”

  1. The importance of and court’s duty under Section 333(2) of the CPC in sentencing has also been buttressed in judicial pronouncements. See the Court of Appeal in Ahamad Abolfathi Mohammed & another – Versus - Republic [2018] eKLR that,

“……courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence, in light of the overall circumstances of the case, does not show that the period spent in custody prior to sentencing had been taken account of.”

  1. Accordingly, failure to take account of time spent in custody as provided in the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence that is, lawfully prescribed or proportional to the offence. and, a convicted person who so suffers may found an action “for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights” under Article 23 (1) and 165 (3) (b) of the Constitution.

Applying the test

  1. It is factual that the POR in the trial court was not favorable. It is also on record that the Applicant did not have a good track record at home and in the village. Further, it is also factual that he had regretted his deed and was remorseful. He cited frustrations in life which are a common factor with the youths. Such youths in my view require guidance in life support skills and behavior change as opposed to retributive punishments.
  2. This is one case I feel would benefit from guidance and or a release so as to give the Applicant time to recollect himself and turn around his life. Indeed, having regard to the quantity of the subject matter and its value, the four- year jail term was excessive punishment.
  3. The sentence having been passed on 10th March, 2023 means that the Applicant has been in custody for 1 year and seven months which in my view is sufficient punishment. The report recommended a non-custodial period. I there find that the objectives of his sentence has been served. He has been punished, the victim achieved some justice up to the point they have forgiven him and he has been rehabilitated.
  4. Pursuant to the aforesaid sentence imposed is legal and lawful. However considering that the Applicant pleaded guilty and saved the Court’s time and that he is a first time offender and the value of the subject matter is Kshs 1,120/- and finally the pre-sentence report filed in the trial court is favorable. I find this is a suitable case for revision.
  5. In the result, I find the application meritorious. I find that the Applicant has served sufficient punishment. I set aside the remainder of the jail term and order as per the recommendation of the Sentence review officer is hereby sentenced to serve 6 months’ community service at Kisauni Probation office.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ………………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

    The Republic AND WALTER OTIENO VS The Republic AND WALTER OTIENO VS