[2023] KEHC 26211 (KLR)

Ayaji v Republic (Criminal Revision 3 of 2023) [2023] KEHC 26211 (KLR) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26211 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 3 of 2023

DR Kavedza, J

December 5, 2023

Between

Haruna Matairu Ayaji

Applicant

and

Republic

Respondent

Ruling

1. The appellant was charged and convicted on two counts for offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 4 of 1994 and unlawfully being present in Kenya contrary to section 53 (1) (J) as read with section 53 (2) of the Kenya Citizenship and Immigration Act no. 12 of 2011. He was sentenced to serve 10 years imprisonment in count I in addition to a fine of Kshs. 4,572,000/= in default to serve one-year imprisonment. In count II, he was sentenced to serve 6 months imprisonment. He filed an appeal before this court and the appeal was unsuccessful.

2. He has now applied to this court under sections 362 and 364 of the Criminal Procedure Code for reduction of sentence. The application was disposed of by way of written submissions. The applicant submitted that since his incarceration, he has been rehabilitated. He is away from his family in Nigeria and wishes to be repatriated back to his country of origin. In addition, he was diagnosed with kidney disease in 2020 and has been undergoing treatment at Mbagathi Hospital. He prayed for a reduction of sentence.

Analysis and determination 3. Before I delve into the analysis of the application, I would like to state that the applicant herein challenged the decision of the lower court vide appeal No. E003 of 2023. On 28th July, 2023 I delivered my judgment dismissing the appeal in its entirety for lack of merit. However, the applicant did not disclose in this application that he had filed an appeal that had been determined. I am therefore functus officio. Nevertheless, I shall proceed and determine the application for revision to bring this matter to final closure.

4. The application is cited as being brought under the revisional powers of the High Court under sections 362 and 364 of the Criminal Procedure Code which empowers the High Court to revise the orders of subordinate courts. The principles upon which an appellate court will act in exercising discretion to review, alter, or set aside a sentence imposed by the trial court were observed in the case of Ogolla & S/O Owuor Vs. Republic [1954] EACA 270 where the court stated:“The court does not alter a sentence on the mere ground that if members of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in James Vs. Republic [1950] EACA page 147, it is evident that the judge has acted upon wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case.”

5. Section 382 of the Criminal Procedure Codeprovides for instances where findings or sentences are reversible because of error or omission in charge or other proceedings. It states that:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

6. The applicant has averred that he is now reformed hence he should get the benefit from sentence review. The applicant has however not argued nor suggested that the sentence passed was illegal or improper nor, that the trial court acted on wrong principle or omitted relevant factors or took into account irrelevant factors in sentencing.

7. Furthermore, I have carefully gone through the proceedings, the judgment and the sentence of the court and find that the trial court considered all relevant factors including, the seriousness of the offence, the circumstances of the applicant, in particular the mitigating factors before imposing the sentence.

8. Additionally, the applicant has averred that he should benefit from sentence review on the ground that he is ailing. Ailing in itself cannot form the basis for interfering with a lawful sentence unless there are exceptional circumstances that have been exhibited. The medical documents attached to the application do not reveal that the applicant is suffering from a terminal disease. The medical conditions indicated in the medical report are common among Kenyans and not isolated to the applicant. None of the conditions is life threatening if the applicant is properly managed at the prison clinic and whenever necessary, he can be escorted to any of the government hospitals for specialized management.

9. Secondly, I note that the instant application is premised on the provisions of section 333 (2) of the Criminal Procedure Code which provides that:“(2)Subject to the provisions of section 38 of the Penal Code (cap. 63) every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

10. It is however apparent from the record that the trial magistrate considered the time spent in custody during the trial before sentencing the applicant. The court stated, “the time spent in custody for each of the accused persons from the 19th of October, 2021 to be considered as part of the sentence served.”

11. The upshot of the above is that I find no error or irregularity, illegality or misdirection on the part of the trial court. The application therefore fails and is accordingly dismissed for lack of merit. The applicant is barred from filing any other application without leave of court.It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER 2023. ......................D. KAVEDZAJUDGEIn the presence of:Mr Kiragu for the respondent.Applicant present on the platform.Joy/ Naomi Court Assistants.