[2023] KEHC 24696 (KLR)
The court found that, although the applicant was initially charged with trafficking in narcotic drugs, the evidence only supported a conviction for possession of narcotic drugs. The applicant was sentenced to three years' imprisonment. However, the Sentence Review Report recommended probation due to the applicant's...
Source-derived case information.
- Citation
- [2023] KEHC 24696 (KLR)
- Parties
- Applicant: Makusanya Kusanya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case E171 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review and Probation
- Outcome
- Sentence revised; applicant released from prison and placed on probation for six months.
- Judges
- HM Nyaga
- Legal Topics
- Narcotic Drugs Offences, Sentence Revision, Probation Orders, Prison Decongestion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Makusanya Kusanya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review and Probation
Legal Issues
- 1 Whether the applicant's sentence should be revised in light of the Prisons Decongestion exercise.
- 2 Whether the applicant qualifies for probation based on the Sentence Review Report and personal circumstances.
Ratio Decidendi
The court found that, although the applicant was initially charged with trafficking in narcotic drugs, the evidence only supported a conviction for possession of narcotic drugs. The applicant was sentenced to three years' imprisonment. However, the Sentence Review Report recommended probation due to the applicant's serious health conditions (cancer, amputation), positive family support, and efforts at rehabilitation. In the context of the ongoing Prisons Decongestion exercise, the court exercised its discretion to revise the sentence, ordering the applicant's immediate release from prison and placement on probation for six months. The court considered the applicant's personal...
Court Disposition
Sentence revised; applicant released from prison and placed on probation for six months.
Orders
- The applicant is released from prison forthwith.
- The applicant is placed on probation for a period of six months.
Full Case Text
Judgment text and source record
25 paragraphs
Kusanya v Republic (Revision Case E171 of 2023) [2023] KEHC 24696 (KLR) (2 November 2023) (Ruling)
Neutral citation: [2023] KEHC 24696 (KLR)
Republic of Kenya
In the High Court at Nakuru
Revision Case E171 of 2023
HM Nyaga, J
November 2, 2023
Between
Makusanya Kusanya
Applicant
and
Republic
Respondent
Ruling
1. This matter has been brought to me under the Prisons Decongestion exercise being undertaken by this court.
2. The Applicant Makusanya Kusanya was charged with the offence of Trafficking in Narcotics Drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act. The particulars being that on 24th November, 2020 at around 1400hrs at Show ground area in Nakuru County he was found trafficking by selling narcotic drugs Cannabis to wit 38 trolls (628gm) with a street value of Ksh. 7,600/=.
3. The matter was heard and the trial magistrate found that the evidence did not support the aforesaid offence. Guided by section 179(1) of the Criminal Procedure Code, the trial magistrate convicted the Applicant of a minor offence of being in possession of narcotic drugs contrary to section 3(1) of the said Narcotic Drugs and Psychotropic substances (Control) Act.
4. On 6th December, 2022, the Applicant was sentenced to 3 years’ imprisonment.
5. In the Sentence Review Report filed on 16th October 2023 the Probation Officer, Samuel Ndung’u, recommends probation for a period of six months.
6. According to the said report, the Applicant’s son stated that the accused was a hardworking person and he helped his family despite constrains on scarce resources. He claims that his mother is ailing and that they will do their best to make the Applicant comfortable and resettle down effectively.
7. The report further states that the applicant is suffering from cancer and his hand has been amputated. He has not undertaken any vocational course but has undergone guidance and counselling sessions and spiritual nourishment.
8. The Applicant does not admit committing the offence however he says he has learned a lesson while in prison.
9. In light of the above and with the view to decongest the prison, I hereby exercise judicial discretion and order the Convict/Applicant be released from prison forthwith and be placed on Probation for a period of six months.
10. File closed.
DATED, SIGNED & DELIVERED AT NAKURU THIS 2ND DAY OF NOVEMBER, 2023. H.M. NYAGA,JUDGE.In the presence of:Ms Murunga for stateApplicant