[2022] KEHC 11663 (KLR)

Kamau v Republic (Miscellaneous Criminal Application E013 of 2021) [2022] KEHC 11663 (KLR) (Crim) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11663 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E013 of 2021

LN Mutende, J

May 18, 2022

Between

Lydia Wanjiku Kamau

Applicant

and

Republic

Respondent

Ruling

1. Lydia Wanjiku Kamau, the applicant, was convicted for the offence of trafficking in Narcotic Drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. No. 4 of 1994 (Narcotics Act).The market value of the heroin in issue was Ksh.927,030/-

2. Following the conviction, the applicant was sentenced to pay a fine of Ksh. Two (2) Million or serve one (1) year imprisonment and in addition, to serve ten (10) years imprisonment.

3. Through an application dated January 31, 2022, the applicant seeks review of the sentence. She seeks this court’s intervention pursuant to the provisions of Section 333(2) of theCriminal Procedure Code.

4. The power of this court in its revisionary jurisdiction is founded under section 362 of theCriminal ProcedureCode, the law enacts that:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

5. In the Notice of Motion that is not supported by any affidavit, the applicant ideally mitigates. She expresses remorse and pleads with the court to consider her age, 68years; give her a chance to reintegrate into the community and of most importance her family, and also consider time that she has been in custody.

6. Section 333 (2) of the Criminal Procedure Code provides that:(2)Subject to the provisions of section 38 of the Penal Code (cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

7. Section 4 of the Narcotics Act which is in respect of the penalty for trafficking in narcotic drugs, etc. provides as follows:Any person who traffics 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;

8. The Judiciary Sentencing Policy Guidelines provide that:“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

9. The record confirms that the accused was in remand during trial and the court did not expressly state that the period spent in custody prior to sentencing was taken into account; this was an irregularity that warrants revision.

10. In the premises, the application succeeds. The applicant will serve the sentence with effect from the date of arrest, the 7th day of October, 2017.

11. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY,THIS 18THDAY OF MAY, 2021. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMr. Kiragu – ODPPCourt Assistant - Mutai