[2022] KEHC 15042 (KLR)
The court found that the trial court erred in law by failing to consider the applicant's pre-trial custody period of approximately two years and six months, as mandated by section 333(2) of the Criminal Procedure Code. Additionally, the court held that the custodial sentences should have run concurrently rather than...
Source-derived case information.
- Citation
- [2022] KEHC 15042 (KLR)
- Parties
- Applicant: Abdoulaye Diallo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 173 of 2019
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- Application for revision allowed; sentence revised.
- Judges
- JM Bwonwong'a
- Legal Topics
- Sentencing Principles, Pre Trial Custody Credit, Drug Trafficking Offences, Concurrent Vs Consecutive Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdoulaye Diallo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the trial court erred by failing to consider the pre-trial remand period in sentencing the applicant.
- 2 Whether the custodial sentences should have run concurrently instead of consecutively.
- 3 Whether the sentence imposed was in accordance with the law under section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
Ratio Decidendi
The court found that the trial court erred in law by failing to consider the applicant's pre-trial custody period of approximately two years and six months, as mandated by section 333(2) of the Criminal Procedure Code. Additionally, the court held that the custodial sentences should have run concurrently rather than consecutively, given that they arose from the same transaction. The High Court therefore revised the sentence to order that the custodial sentences run concurrently from the date of conviction, and that the applicant serve ten years less the pre-trial custody period. The court also ordered that the applicant be deported to Guinea upon completion of his sentence, in accordance...
Court Disposition
Application for revision allowed; sentence revised.
Orders
- Custodial sentences to run concurrently from the date of conviction.
- Applicant to serve ten years less two years and six months, with sentence running from date of conviction.
Full Case Text
Judgment text and source record
30 paragraphs
Diallo v Republic (Criminal Revision 173 of 2019) [2022] KEHC 15042 (KLR) (Crim) (18 October 2022) (Judgment)
Neutral citation: [2022] KEHC 15042 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision 173 of 2019
JM Bwonwong'a, J
October 18, 2022
Between
Abdoulaye Diallo
Accused
and
Republic
Prosecutor
(-(Being an application for revision of the sentence of Hon. Gandani, CM, delivered on 8/11/2017 in the Chief Magistrate’s Court at Kibera in Criminal Case No.504 of 2016, Republic V Abdoulaye Diallo)
Judgment
1. The applicant has applied for revision of his sentence of a fine of Kshs 24,000/- in default to serve 6 months imprisonment. He was also in addition sentenced to ten years (10) imprisonment. The two prison sentences were ordered to run consecutively.
2. The statutory penalty in section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 is couched in the following terms:“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;……..”
3. The applicant was convicted of unlawfully trafficking in narcotic drugs namely 200 grams of cocaine, whose market value was Kshs. 8,000/- contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The said drugs were concealed in four pairs of ladies’ shoes and twenty ladies’ wallets.
4. The basis of his revision is that the trial court did not take into account the pre-trial remand period, when he was in custody p`ending his trial in that court.
5. A perusal of the record of the proceedings shows that he was arrested on February 4, 2015 and was taken to court on the same date.
6. He was found guilty and convicted of that offence on November 8, 2017. Thereafter he was sentenced on January 18, 2018.
7. During the entire period he was in pre-trial custody, which translates to a period of about two years (2) and six months (6), that is from February 4, 2015 to November 8, 2017.
8. In sentencing the applicant, the trial court did not take into account the pre-trial custody period of about two years and 6 months. I therefore find that the trial erred in law, because section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya, mandatorily required that court to take that period into account.
9. Furthermore, I find that the custodial sentences should have been ordered to run concurrently and not consecutively.
10. In the circumstances, I find that there is basis to interfere with the sentencing discretion of the trial court.
11. In view of the above findings, I hereby order that the custodial sentences are to run concurrently from the date of conviction. I further order that the applicant is to serve ten years less two years and 6 months, which sentence is to run from the date of conviction.
12. Additionally, upon completion of his prison sentence the applicant is to be deported (repatriated) back to the country of his nationality namely Republic of Guinea (Conakry) in terms of section 26A of the Penal Code (Cap 63) Laws of Kenya.
13. In the premises, the application succeeds as shown in the foregoing paragraphs.
JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe accused/applicant in personMs. Edna Ntabo for the Respondent