[2022] KEHC 16317 (KLR)

Bonfim v Republic (Criminal Revision E027 of 2022) [2022] KEHC 16317 (KLR) (Crim) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16317 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E027 of 2022

JM Bwonwong'a, J

December 15, 2022

Being an application for revision against the sentence imposed by Hon. L.O Onyina (SPM) on 26th November 2020 at the JKIA Chief Magistrate’s Court in Criminal Case No. 41 of 2018 Republic vs Josias Rodrigues Bonfim & 2 others

Between

Josias Rodrigues Bonfim

Applicant

and

Republic

Respondent

(Being an application for revision against the sentence imposed by Hon. L.O Onyina (SPM) on 26th November 2020 at the JKIA Chief Magistrate’s Court in Criminal Case No. 41 of 2018 Republic vs Josias Rodrigues Bonfim & 2 others)

Ruling

1. Josias Rodrigues Bonfim, jointly charged with two others not before the court, and was convicted of the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. No. 4 of 1994. The said drugs were 2102. 26 grams of cocaine whose market value was Kshs. 8, 409,040/=

2. He was sentenced to serve a term of eight (8) years imprisonment and in addition to pay a fine of Kshs. 2,400,000 in default serve a term of one (1) year imprisonment by the trial court.

3. He has now approached this court by an undated notice of motion pursuant to sections 333 (2) and 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya. The application seeks a review of his sentence of 9 years imprisonment which was imposed by the trial court in the Chief Magistrate’s Court at JKIA in Criminal Case No. 41 of 2018.

4. The applicant also filed a supporting affidavit in support of his application. The averments made in support of his application for revision are that he was arrested on March 26, 2018 and was in pre-trial remand custody until his conviction and sentence. He has reformed and is ready to be reintegrated back into society. He has suffered psychologically and emotionally by being far from his family as they cannot visit him due to their status and ailments. He is remorseful for the commission of the offence which has resulted in substantial depravity for his family. He is a first offender and has suffered enough over the period he has been in custody.

5. He urged the court to review his sentence to run from the date he was arrested.

The applicant’s submissions 6. In his oral submissions made before the court, the applicant submitted that his sentence should run from the date he was remanded, which is nine (9) years in accordance with the provisions of section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.

Issues for determination 7. I have considered the application and the submissions. I find that the issue that arises for determination is: -1. Whether the applicant has met out a case for the grant of the orders sought.

Analysis and determination 8. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides that:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

9. The revisionary jurisdiction of the High Court has been constitutionalized and expanded. This is clear from the provisions of article 165 (6) of the Constitution of Kenya, which provides that:“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

10. The jurisdiction of this court is not in doubt in view of the above provisions. On the merits of the application, the applicant seeks a review of the sentence of the magistrate court which sentenced him to serve a term of eight (8) years imprisonment and in addition pay a fine of Kshs. 2,400,000 and in default serve a term of one (1) year imprisonment, which in total translates to 9 years imprisonment. The argument is that the court did not consider the provision of section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya. Section 333 (2) of the Criminal Procedure Code (Cap 75), Laws of Kenya 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.”

11. It is therefore clear that the period during which an accused has been held in custody before being sentenced must be taken into account in meting out the sentence.I have perused the record of the proceedings in the trial court. The applicant was arrested on March 26, 2018 and arraigned in court to take plea on March 29, 2018. During the trial, he was not released on bail/bond. The trial court sentenced him on November 26, 2020. In handing down the sentence, the trial court indicated that it had considered the period spent in custody. In this case the trial court did not state when the sentence meted would commence. In my view, it is necessarily prudent that there be an indication of the same by the trial court, particularly where an accused has been in custody for some period before being sentenced.The provisions of section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 provide as follows:“4. Penalty for trafficking in narcotic drugs, etc.Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—a.in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;”

12. The law provides for life imprisonment for the offence the applicant was charged with. In the instant case, he was sentenced to serve 8 years imprisonment and pay a fine of Kshs. 2. 4 million in default to serve 1-year imprisonment. Although the trial court did not indicate whether the sentence was to commence from the date of arrest or conviction it noted that the applicant had been in trial custody and stated that it had taken into account the period spent in pre-trial custody. Accordingly, in computing the sentence to be served by the applicant, the period from March 26, 2018 to November 26, 2020 was taken into account as stated by the trial court.It is trite law that sentencing is a matter for the discretion of the trial court. I find that the sentences imposed were justified. Additionally, in article 2 (5) the constitution declares that:“the general rules of international law shall form part of the law of Kenya.”Additionally, in article 2 (6) the Constitution also declares that:“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

13. In view of the foregoing, it is important to make reference to the diplomatic and consular practice in view of what transpired in this case, as shown below.

14The record of the trial court also indicates that Kenya in the discharge of its international obligations under the Vienna Convention on Consular law informed the Embassy of Brazil of the appellant’s arrest and detention in Kenya under the Vienna Convention on Consular Relations, 1963, which provides that:“article 36 Communication and contact with nationals of the sending State1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:a.consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;b.if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;c.consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

15. A similar provision is made under the Vienna Convection on Diplomatic Relations, 1961, which provides that:article 42 Notification of arrest, detention or prosecutionIn the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.”

16. The foregoing provision is necessary where the foreign embassy discharges both consular and diplomatic functions as well.I find that the proceedings were conducted in accordance with the law and therefore I find no irregularity that warrants revision.The upshot of the foregoing analysis is that the application for revision is found to be lacking in merit and is hereby dismissed.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe appellant in person.Ms. Akunja for the Republic/Respondent