[2012] KEHC 3945 (KLR)
The court declined to revise the applicant's sentence because there was insufficient material before it to justify the exercise of its revisionary jurisdiction. The applicant did not challenge the conviction or argue that the sentence was harsh or excessive, and the lower court proceedings were not provided. Without...
Source-derived case information.
- Citation
- [2012] KEHC 3945 (KLR)
- Parties
- Applicant: Jane Nelly Awour; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 26 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- LA Achode
- Legal Topics
- Sentence Revision, Narcotic Offences, First Offender, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Nelly Awour
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court should revise the custodial sentence imposed on the applicant for trafficking in narcotic drugs.
- 2 Whether sufficient material was placed before the court to justify exercise of revisionary jurisdiction.
Ratio Decidendi
The court declined to revise the applicant's sentence because there was insufficient material before it to justify the exercise of its revisionary jurisdiction. The applicant did not challenge the conviction or argue that the sentence was harsh or excessive, and the lower court proceedings were not provided. Without these, the court could not assess the circumstances of the offence or the reasoning of the trial magistrate. The applicant's personal reformation and conduct in prison, while commendable, were not sufficient grounds for revision in the absence of a legal or procedural error in the original sentence.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Criminal Revision 26 of 2012
JANE NELLY AWOUR................................................................................................APPLICANT
VERSUS
REPUBLIC................................................................................................................RESPONDENT
RULING
1. Strictly speaking what is before me is not an application for REVISION. According to Section 362 Criminal Procedure Code, a matter comes before the High court for REVISION if it has come for purposes of the court satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed therein, and as to the regularity of any proceedings in the subordinate court.
2. In the matter before me the learned counsel Mr. Swaka appealing for the applicant, is asking the court, of its own motion, to revise the custodial sentence imposed upon the applicant.
3. According to the learned counsel’s letter dated 12th March 2012 by which he moved this court the applicant was sentenced to serve five years imprisonment without option of fine. The sentence was with regard to the offence of trafficking in narcotic drugs contrary to Section 4(a)ofAct No. 4of1994. The applicant was so sentenced after the court found that she was in possession of 1kg of Diacetylmorphine in Solution and mixture form.
4. The sentence commenced on 6th August 2009 and the applicant is due for release in December 2012.
5. The learned counsel pointed out that it is not their argument that the sentence inflicted upon the appellant by the trial court was harsh, nor does the applicant challenge it in any way.
6. I note that at the time of sentence the applicant was treated as a first offender. According to her counsel, she has learnt the error of her former ways and is a changed person. She has even embraced Christianity and now leads other inmates in prayers in prison.
7. Be that as it may, the applicant must render into Caesar what belongs to Caesar even as the applicant has decided to turn her life around and is how rendering unto God what belongs to God.
8. The learned counsel made very passionate submissions on behalf of the applicant but there is, however, very little before me by which I may consider the applicant’s earlier circumstances to compare with this new changed creature. This would have required that the learned counsel submits with this application, the proceedings by which the applicant was convicted.
9. Without the lower court proceedings the court has no sight of the circumstances of the offence, nor the reasoning of the learned trial magistrate as she passed sentence upon the applicant. This would also indicate whether the applicant was convicted on her own plea or after a long drawn out trial. Court in passing sentence weighs the evidence and the circumstances of the case before it, to see that the crime fits the punishment.
10. Since the applicant has not urged that the conviction was faulty, nor that the sentence was harsh or excessive in any manner, and there being no material upon which this court may decide that the interests of justice will be better served by reducing the applicant’s sentence, except of course, for the submissions of her advocate from the bar, I find that the there is not enough material before me upon which I may exercise my discretion.
Reasons wherefore the application is dismissed.
SIGNED DATEDandDELIVEREDin open court this 14TH day of JUNE, 2012.
L. A. ACHODE
JUDGE