[2019] KEHC 7059 (KLR)
The court found that the appellant, a 17-year-old addict, was more suited for rehabilitation than incarceration. The probation report indicated the appellant was mentally confused, incoherent, and would benefit from mental treatment and drug therapy. The trial court had lamented the lack of operational...
Source-derived case information.
- Citation
- [2019] KEHC 7059 (KLR)
- Parties
- Appellant: AMA (Abdurlahman); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 04 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Revision of Sentence
- Outcome
- sentence revised; imprisonment substituted with probation and rehabilitation
- Judges
- CC Kipkorir
- Legal Topics
- Narcotic Drugs Possession, Sentencing Revision, Probation Orders, Rehabilitation of Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AMA (Abdurlahman)
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Revision of Sentence
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for possession of narcotic drugs was excessive in the circumstances.
- 2 Whether the appellant, being a minor and an addict, should be considered for probation and rehabilitation instead of imprisonment.
Ratio Decidendi
The court found that the appellant, a 17-year-old addict, was more suited for rehabilitation than incarceration. The probation report indicated the appellant was mentally confused, incoherent, and would benefit from mental treatment and drug therapy. The trial court had lamented the lack of operational rehabilitation facilities under the Act. Exercising powers under section 364 of the Criminal Procedure Code, the court substituted the 10-year imprisonment with a 3-year probation term, to be served under strict supervision, and ordered the appellant to undergo treatment and psycho-social rehabilitation at the Omari Rehabilitation outreach. The decision was guided by the need to address the...
Court Disposition
sentence revised; imprisonment substituted with probation and rehabilitation
Orders
- The 10-year imprisonment term is substituted with a probation term of 3 years under strict supervision of the probation office.
- The offender shall undergo treatment and psycho-social rehabilitation at Omari Rehabilitation outreach.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARSEN
CRIMINAL APPEAL NO. 04 OF 2017
AMA..............................APPELLANT
VERSUS
REPUBLIC................RESPONDENT
RULING ON REVISION OF SENTENCE
1. This is a case in which the appellant, AMA (“Abdurlahman”) was charged with the offence of being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act (NPSA)No. 4 of 1994. The particulars of the charge were that on 27th September 2016 at 7:03pm at Gaden area in Langoni Location in Lamu West Sub-County within Lamu County, he was found in possession of narcotic drugs namely cannabis to wit 17 grams with estimated market value of Kshs. 300/= which was not meant for medical purposes in contravention of the said Act. When the appeal came up for hearing before Ongeri J, the appellant abandoned his grounds of appeal and only sought revision of sentence.
2. The appeal was first heard by Ongeri J whom after hearing submissions of Mr. Kasyoka counsel for the respondent on 22/2/2018 ordered that a probation officer’s report be filed in court. In his submissions, Mr. Kasyoka had stated that the sentence meted by the trial court was excessive. He also submitted that the appellant was 17 years of age.
3. The probation report was presented to court on 24/7/2018. In presenting the report, probation officer Mr. Mwaniki submitted that the Omari project a Non – Governmental Rehabilitation Centre had assessed the appellant and was willing to aid in his rehabilitation if placed on probationary sentence. The probation report noted that the appellant appeared mentally confused and incoherent and would benefit from mental treatment and drug therapy from the Malindi General Hospital, the MAT Clinic and Omari Rehabilitation outreach. The family background according to the report is that two of his siblings were currently serving prison sentences for drug related offences and that at the time of arrest the convict was living like a vagabond and had a care free lifestyle.
4. I have considered the respondent’s submissions and the probation report. The appellant was convicted under section 3 (2) (a) of the NPSA which provides a mandatory sentence. In meting out this sentence however the trial court lamented that part V of the Narcotic Drugs and Psychotropic Substances Control Act which provides for rehabilitation of an offender adjudged to be an addict had not been operationalized despite there being a dire need. I couldn’t agree more with the learned magistrate’s observation and call to action of the state to provide rehabilitation facilities envisaged under part V of the Act.
5. Having looked at the probation report and in particular the observation that the offender was an addict deserving of mental treatment and rehabilitation, I exercise the power donated to me under section 364 of the Criminal Procedure Code and substitute the 10 year imprisonment term with a probation term of 3 years to be served under the strict supervision of the probation office.
6. In addition the offender shall undergo the relevant treatment and psycho-social rehabilitation at the Omari rehabilitation outreach. The probation officer shall file a report of such on ongoing treatment within 60 days of this order.
Orders accordingly.
Ruling dated, signed and delivered at Garsen this 22nd day of May, 2019.
.....................................
R. LAGAT KORIR
JUDGE
In the presence of
The Appellant
Mr. Kasyoka for the Respondent
Mr. Mwaniki Probation officer
Ms. Pacho Court Assistant