[2007] KEHC 3617 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Criminal Appeal 588 of 2005

JOYCE WANJIRU ALIAS JENIFFER ADHIAMBO……....………APPELLANT

VERSUS

REPUBLIC ……………………………………………....……….RESPONDENT

(From the original conviction and sentence in criminal case No. 8066 of 2005 of the Chief magistrate’s Court at Kibera)

JUDGMENT

The appellant JOYCE WANJIRU MBUGUA alias JENNIFER ADHIAMBO OKELLO was convicted of the offence of trafficking in Narcotics Drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 (first count). She was also convicted of the offence using a forged passport contrary to section 13(1) (D) of the Immigration Act – Cap 122 Laws of Kenya

nd count). She was sentenced to serve ten (10) years imprisonment on the first count, and two (2) years imprisonment on the second count. Sentences were to run concurrently. She appealed to this court on sentences, as she had pleaded guilty to the charges.

Learned State Counsel Mrs. Kagiri conceded to the appeal on sentence. It was counsel’s contention that though the sentence was lawful, the learned magistrate did not consider that the appellant was a first offender before sentencing her to ten (10) years imprisonment. The magistrate also did not consider that the appellant pleaded guilty to the charge; the drugs involved was merely 189 gramms, and also that the appellant appeared remorseful.

I have considered the appeal and the submissions made before me. Sentencing is essentially an exercise of discretion by the trial court, and for an appellate court to interfere it must be shown that is passing the sentence, the sentencing court took into account an irrelevant factor or failed to take into account a relevant factor or that a wrong principle was applied or that short of these the sentence itself is so harsh and excessive that an error in principle must be inferred - see SHADRACK KIPKOECH KOGO –vs- REPUBLIC – Criminal Appeal No. 253 of 2003 Eldoret (unreported).

I have perused the record. In sentencing, the magistrate did not refer to the mitigation of the appellant, nor to the fact that the appellant had pleaded guilty to the charge, nor did the magistrate consider the quantity of drugs, the subject of the charge. In my view, the magistrate failed to take into account relevant factors in sentencing.

I am of the view that if the magistrate had taken into account the relevant mitigating factors, he would not meted the sentences that he meted. In my view though the sentences imposed were perfectly legal, they were harsh and excessive as to amount to a miscarriage of justice. I observe that the maximum sentence under section 4 (a) of the Narcotic Drugs and Phychotropic Substances Act is a fine of one million shillings and imprisonment for life, while the maximum sentence under section 3(1) (d) of the Immigration Act is a fine not exceeding one hundred thousand shillings or imprisonment for a term not exceeding three years or both. Learned State Counsel concedes to the appeal on sentence. The value of the drugs was Kshs.189,000/=

In the premises I would interfere with the sentences. The appellant will now serve sentences as follows –

1. Imprisonment for a term of count of five (5) years for the first count of trafficking in Narcotic drugs effective from the date of conviction by the learned magistrate.

2. The sentence of two years imprisonment on the charge of

using a forged passport is upheld.

3. The two above sentences will run concurrently, as ordered by the trial magistrate.

4. The order for deportation on finalization of sentence is upheld.

It is so ordered.

Dated and delivered at Nairobi this 20th day of June 2007.

George Dulu

Judge

In the presence of –

Appellant