[2004] KEHC 2566 (KLR)
The court held that while the appellant's personal circumstances and remorse were noted, they did not constitute sufficient grounds for reducing the custodial sentence imposed for serious offences such as drug trafficking and possession of forged documents. However, in the interest of giving the appellant a second...
Source-derived case information.
- Citation
- [2004] KEHC 2566 (KLR)
- Parties
- Appellant: Betty Akinyi alias Neela Achieng Siwo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1008 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Sentence
- Outcome
- Sentence varied to allow for possible community service or probation, pending probation report.
- Legal Topics
- Sentencing Principles, Drug Trafficking, Forged Documents, Use of False Passport
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Betty Akinyi alias Neela Achieng Siwo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Sentence
Legal Issues
- 1 Whether the sentence imposed on the appellant was excessive or should be reduced in light of her personal circumstances.
- 2 Whether the appellant's remorse and personal hardships constitute sufficient grounds for reduction of sentence.
- 3 Whether the court should vary the sentence to allow for community service or probation.
Ratio Decidendi
The court held that while the appellant's personal circumstances and remorse were noted, they did not constitute sufficient grounds for reducing the custodial sentence imposed for serious offences such as drug trafficking and possession of forged documents. However, in the interest of giving the appellant a second chance, the court exercised its discretion to vary the sentence, directing that the balance of the sentence may be served through community service or probation, subject to the filing and consideration of a probation report.
Court Disposition
Sentence varied to allow for possible community service or probation, pending probation report.
Orders
- A probation report to be filed within ten days.
- Case to be mentioned on 9th December 2004 for final orders.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 1008 of 2002
(Appeal from Original Conviction and Sentence in Criminal Case No. 3833
of 2002 of the Senior Principal Magistrate’s Court at Kibera)
BETTY AKINYIaliasNEELA ACHIENG SIWO……APPELLANT
versus
REPUBLIC………………………………………………RESPONDENT
JUDGEMENT
The appellant BETTY AKINYIALIAS NELEAH ACHIENG SIWOwas convicted for TRAFFICKING IN DRUGS,contrary to section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act. She was also convicted for BEING IN POSSESSION OF A FORGED PASSPORT, contrary to section 13(1)(D) of the Immigration Act; and thirdly, she was convicted for USING A PASSPORT ISSUED TO ANOTHER PERSON,contrary to section 13(1) (f) of the Immigration Act.
Following her conviction, the appellant was sentenced to imprisonment for 5 years on count 1, and for 12 months for each of the other two counts. However, the learned trial Magistrate directed that the sentences run concurrently.
Thereafter, the appellant appealed against both conviction and sentence. But when the appeal came up for hearing, the appellant abandoned her appeal against conviction. This appeal was therefore only in relation to the sentence. It was submitted by the appellant that she was ailing. Also she complained that nobody goes to visit her at the prison. She lacks basis necessities, while in prison. And also because nobody visits her, the appellant did not have any information about her children.
During her stay in jail, she lost her mother, who died in April 2004.
The appellant says that she has reformed, and promises not to commit any other criminal offence. She informed the court that she had managed to secure a person who was ready to sponsor her to Vera. She was therefore asking the court to reduce her sentence, so that she could take up the chance which she had been given.
The appeal was opposed.
Learned State Counsel, Miss Gateru submitted that although the appellant looked remorseful, the offence was a serious one, and therefore called for a deterrent sentence. For those reasons, the respondent urged me to dismiss the appeal.
Having given due consideration to the submissions by the appellant, there are no grounds upon which the sentence could be reduced, if the appeal was handled in the conventional manner. Even though the appellant was sick, that should only be a basis for an order, if one was needed, to enable her access medical treatment.
As regards the lack of basic essentials, the appellant must remember that prison was not meant to provide her with a comfortable lifestyle.
All said and done, the only thing that stands out, as said by Miss Gateru, is the fact that the Appellant appears to be very remorseful. But then again, I cannot reduce her sentence simply because the appellant was remorseful. In the circumstances, I decline to reduce the duration of the sentence meted out by the learned trial Magistrate.
However, in order to give the appellant the opportunity for a second chance in life, I do order that the sentence be varied, so that the appellant shall be able to serve the balance of the sentence either through community service or while on probation. Before I can make the final orders in that regard, I direct that a probation Report be filed in this court, within the next TEN (10) DAYS.
Accordingly, this case will be mentioned before me on 9th December 2004, for final orders.
Dated at Nairobi this 29th day of November 2004
FRED A. OCHIENG
AG. JUDGE