[2018] KEHC 369 (KLR)
The High Court found that the trial court, in sentencing the applicant to 7 years imprisonment for possession of 7 rolls of cannabis sativa, placed undue weight on another pending criminal matter in which the applicant had not been found guilty. While the adverse probation report justified a custodial sentence, the...
Source-derived case information.
- Citation
- [2018] KEHC 369 (KLR)
- Parties
- Applicant: Hilton Mukundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 5 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- Application for revision allowed; conviction upheld; sentence revised to period already served.
- Judges
- BB Limo
- Legal Topics
- Sentencing Principles, Possession of Narcotics, Judicial Discretion, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hilton Mukundi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the sentence of 7 years imprisonment for possession of 7 rolls of cannabis sativa was harsh and excessive in the circumstances.
- 2 Whether the trial court exercised its sentencing discretion judiciously, taking into account only relevant factors.
Ratio Decidendi
The High Court found that the trial court, in sentencing the applicant to 7 years imprisonment for possession of 7 rolls of cannabis sativa, placed undue weight on another pending criminal matter in which the applicant had not been found guilty. While the adverse probation report justified a custodial sentence, the sentence imposed was considered harsh, though within the legal limits. The High Court held that the trial court failed to exercise its discretion judiciously by considering extraneous factors, and therefore the sentence should be revised. The conviction was upheld, but the sentence was substituted with the period already served, amounting to approximately 1 year and 10 months.
Court Disposition
Application for revision allowed; conviction upheld; sentence revised to period already served.
Orders
- The conviction of the applicant is upheld.
- The sentence of 7 years imprisonment is set aside and substituted with the period already served (approximately 1 year 10 months).
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL REVISION NO. 5 OF 2018
HILTON MUKUNDI..........APPLICANT
VERSUS
REPUBLIC.....................RESPONDENT
(Intended Appeal from Conviction and sentence of the P.M'S Court in Criminal Case No. 1 of 2017 at Marimanti delivered by HON. S.M. Nyaga (RM) on10/1/2017).
R U L I N G
1. The applicant herein Hilton Mukundi was charged with the offence of being in possession of cannabis sativa contrary to Section 3(1) as read with Section 3(2) of the Narcotic and Psychotropic Substance Control Act No. 4 of 1994.
The particulars of the charge were that on 31st December, 2016 at Makutano Police Station Tharaka North he was found in possession of 7 rolls of cannabis sativa (Bhang) which was not in form of any medical preparation. The applicant pleaded guilty he was charged and convicted on his own plea of guilty and sentenced to serve 7 years imprisonment.
2. The applicant has now moved this court under the provisions of Sections 362 and 364 of the Criminal Procedure Code for review of his sentence stating among the grounds that he has spent one year in prison and has since reformed. He is asking this court to be lenient and give him another chance so that he can care for his family. He further says that he is a 1st offender and remorseful.
3. This court has called for the lower court file No. Marimanti Principal Magistrate's court Criminal Case No. 1/2017 pursuant to the provisions of Section 362 of the Criminal Procedure Code and I have perused through the file. The applicant was found in possession of 7 rolls of bhang (cannabis sativa) and convicted on his own plea of guilty and sentenced to serve 7 years imprisonment.
In convicting him, the trial court observed as follows:
" I have perused the probation officer's report and seems the offender is a dangerous man and who is not willing to change for being in criminal activities left right and centre(sic) . He is also a liar before court. I am aware of his pending plea vide Criminal Case No. 15/17, .................."
The trial court went ahead and sentenced him to serve 7 years imprisonment. Of course the trial court exercised its discretion because the sentence provided under Section 3 (2)of Narcotic and psychotropic substances Control Act is upto 10 years imprisonment. In the exercise of that discretion, a court is required to do so judiciously and this court can only interfere if it is shown that the court took into account irrelevant/extraneous factors or failed to take into account relevant factors in the exercise of the discretion. As seen from the above observation made by the trial court it is apparent the trial put more weight on another criminal matter where the applicant had not been found guilty. While it is true that the probation report was adverse to him being given a non custodial sentence, in my view sentencing the applicant to serve 7 years imprisonment for being found with 7 rolls of bhang is a little bit harsh though legal.
In the premises this court finds merit in the applicant's plea for revision. I allow his application dated 22nd February, 2018 by upholding his conviction but I will set aside his 7 years imprisonment and in its place substitute the same with the period the applicant has already served (Approximately 1 year 10 months).
Dated, signed and delivered at Chuka this 24th day of October, 2018.
R.K. LIMO
JUDGE
24/10/2018
Ruling signed, dated and delivered in the open court in the presence of the applicant in person and Machirah for Respondent.
R.K. LIMO
JUDGE
24/10/2018