[2000] KEHC 223 (KLR)
The appellate court found that the trial magistrate failed to consider the appellant's background when imposing sentence, which constituted a misdirection in the exercise of sentencing discretion. As a result, the appellate court was entitled to interfere with the sentence. The court determined that reducing the...
Source-derived case information.
- Citation
- [2000] KEHC 223 (KLR)
- Parties
- Appellant: Juma Shaban Ndema; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 394 of 1999
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to period served; appellant to be released unless otherwise lawfully held
- Judges
- AI Hayanga
- Legal Topics
- Sentencing Principles, Narcotic Drugs Offences, Judicial Discretion in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Shaban Ndema
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed by the trial court was appropriate in the circumstances of the case.
- 2 Whether the trial court exercised its discretion in sentencing on correct legal principles.
Ratio Decidendi
The appellate court found that the trial magistrate failed to consider the appellant's background when imposing sentence, which constituted a misdirection in the exercise of sentencing discretion. As a result, the appellate court was entitled to interfere with the sentence. The court determined that reducing the sentence to the period already served was appropriate in the circumstances, and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
sentence reduced to period served; appellant to be released unless otherwise lawfully held
Orders
- The sentence is reduced to the period already served by the appellant.
- The appellant is to be discharged from prison forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.394 OF 1999
(FROM original Conviction and Sentence in Criminal Case No.479 of 1999 of the Senior Principal Magistrate’s Court at Malindi –P.M. Mutani, SRM)
JUMA SHABAN NDEMA ……………………………………………………. APPELLANT
- versus -
REPUBLIC ………………………………………………………………….. RESPONDENT
J U D G E M E N T
Appellant was convicted of being in possession of Narcotic Drugs Contrary to S.3 of Drugs and Psychotropic Substances (Control) Act No.4 of 1994. He was sentenced to 2 years imprisonment together with another accused. Other 2 convicts were placed under probation. He now appeals against sentence having abandoned his appeal against conviction. The State opposes the appeal saying 2 years as against 10 years maximum is lenient.
I have considered the circumstances considered by the Learned Magistrate in giving this sentence. The fact that there were middle men selling drugs to some available foreign consumers luring people like appellant into the trade. I know also that the appeal court can only interfere with trial court’s discretion in sentence where it is based on wrong principle or is manifestly excessive or manifestly low as to be a breach of principle.
I believe that failure of the Learned Magistrate to have considered his background was a wrong exercise of that discretion on her part. I believe I can alter this sentence by reducing the sentence to the period already served by the appellant and discharge him from prison forthwith unless otherwise lawfully held.
Dated this 6th Day of September, 2000.
A.I. HAYANGA
JUDGE