[2019] KEHC 376 (KLR)
The court found that the Applicant was convicted of possession of 711 grams of cannabis sativa valued at Kshs. 5,333/=. Both the Applicant and the 2nd Accused had favourable probation reports, yet the Applicant received a custodial sentence while the 2nd Accused was placed on probation. The court held that the...
Source-derived case information.
- Citation
- [2019] KEHC 376 (KLR)
- Parties
- Applicant: Destrious Kisikwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 154 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Sentence and Release
- Outcome
- application allowed; sentence reviewed; applicant released
- Legal Topics
- Narcotic Drugs Possession, Sentencing Disparity, Probation Reports, Custodial Sentence, Quantity of Drugs, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Destrious Kisikwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Sentence and Release
Legal Issues
- 1 Whether the sentence imposed on the Applicant was proportionate to the offence and circumstances.
- 2 Whether the trial court erred in imposing varied sentences on co-accused with similar probation reports.
- 3 Whether the period already served by the Applicant was sufficient punishment.
Ratio Decidendi
The court found that the Applicant was convicted of possession of 711 grams of cannabis sativa valued at Kshs. 5,333/=. Both the Applicant and the 2nd Accused had favourable probation reports, yet the Applicant received a custodial sentence while the 2nd Accused was placed on probation. The court held that the disparity in sentencing was not justified by the law or the facts, and that the period of two years and nearly four months already served by the Applicant was sufficient punishment. The remainder of the sentence was set aside, and the Applicant was ordered to be released unless otherwise lawfully held.
Court Disposition
application allowed; sentence reviewed; applicant released
Orders
- The remainder of the Applicant's sentence is set aside.
- The period of 2 years and close to 4 months already served is deemed sufficient sentence.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
AT THE HIGH COURT
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 154 OF 2019
DESTRIOUS KISIKWA.......APPLICANT
VERSUS
REPUBLIC.........................RESPONDENT
RULING
1. The Applicant herein was the 1st Accused in Kibera Criminal Case No. 1614/2014. He was charged jointly with two others with the offence of being in possession of narcotic drugs contrary to Section 3(1)as read withSection 22(a)of theNarcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The particulars of the offence were that on the 22nd day of June 2018 at Thiong’o road in Kangemi within Nairobi County, were jointly found in possession of narcotic drugs namely cannabis sativa, to wit seven hundred and eleven (711) grams with a street value of Kshs. 5,333/= in contravention of he said Act.
2. After the trial, the Applicant and the 2nd Accused were convicted accordingly. The 3rd Accused absconded. The trial court called for the Probation Officers Reports, both were dated 3/8/2017. In the sentence, the Applicant was to serve 3 years imprisonment whilst the 2nd Accused was sentenced to 2 ½ years probation. Both Probation Officers Reports were favourable. It is not clear why the trial court applied varied sentences in the circumstances, which can only be concluded that other factors other than the law influenced the sentence.
3. Nevertheless, it is clear that the amount of bhang the Applicant was in possession of was only 711 grams worth Kshs. 5,333/=. This quantity ought not to have attracted such a hefty sentence.
4. Accordingly, I allow the application. I set aside the remainder of the sentence. I find that the period of 2 years and close to 4 months that the Applicant has been in custody is sufficient sentence. I order that he be forthwith set free unless otherwise lawfully held.
Dated and Delivered at Nairobi This 22nd October, 2019.
G.W.NGENYE-MACHARIA
JUDGE.
In the presence of;
1. Applicant in person
2. Momanyi for the Respondent.