[2024] KEHC 5243 (KLR)

Lokuria v Republic (Criminal Revision E102 of 2024) [2024] KEHC 5243 (KLR) (17 May 2024) (Ruling)

Neutral citation: [2024] KEHC 5243 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Revision E102 of 2024

RN Nyakundi, J

May 17, 2024

Between

James Lokuria

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged with the offence of trafficking in Narcotic Drugs (Bhang) contrary to section 4(a) of the Narcotic Drugs and Psychotropic Control Act, No. 10 of 2010. He also faces an alternative charge of being in possession of Cannabis Sativa contrary to section 3(1) as read with Section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act.

2. The applicant pleaded guilty to the offence before Hon. C.A Mayamba on 28th July, 2023 and as a consequence, he was convicted on his own plea of guilty and sentenced to 15 months imprisonment.

3. The applicant has approached this court pursuant to sections 357,362,364& 382 of the Criminal Procedure Code as construed with Article 50(2) (p) & (q) as conjunctively read with Article 50(6)(a) &(b) of the Constitution.

4. The applicant seeks a sentence review based on the sentence review report on record. The report is responsive. The report indicates that for the period he has been in custody, he has changed a lot and he now a disciplined person. He is remorseful and regrets committing the offence. He prayed that the court be lenient and consider a non-custodial sentence. The probation officer recommended a CSO for the remaining period at the township chief’s office.

5. In determining whether to impose a custodial or non-custodial sentence, the court is required to take into account the following factors: -a)Gravity of the offence: - sentence of imprisonment should be avoided for misdemeanour.b)Criminal history of the offender. Taking into account the seriousness of the offences, first offenders should be considered for non-custodial sentence.c)Character of the offender: - non-custodial sentence are best suited for offenders who are already remorseful and receptive to rehabilitative measures.d)Protection of the community: - where the offender is likely to pose a threat to the community.e)Offender’s responsibility to third parties: - where there are people depending on the offender.

6. Further to the aforementioned, the Community Service Orders Act makes it possible for courts to issue an order requiring the offender to perform community service. This option is available to court when the offender is convicted of an offence punishable by imprisonment for a term not exceeding three years or imprisonment for a term exceeding three years but for which the court determines that any of that term as would be appropriate be served within the community on unpaid public works.

7. Having gone through the facts of the present case and particularly the age of the applicant, the circumstances fit the legal framework of the Community Service Act as an alternative sentence to imprisonment. He is a young person with a whole life ahead of him and a non-custodial sentence would be greatly beneficial with proper guidance and counselling. Consequently, the effective measure as recommended by the probation officer is to have the applicant serve a community service order for the remaining period at township chief’s office. Monthly reports shall be filed in court by the supervisor of the applicant through the probation officer. The essence of it is to achieve the effectiveness of this non-custodial sentence and that any breach of any conditions by the applicant shall attract cancellation of the community service order and have the sentence reverted to custodial sanctions.

SIGNED, DATE AND DELIVERED AT LODWAR THIS 17TH DAY OF MAY 2024. In the presence:Mr. Jonathan K. Bungei for the StateAppellant.......................R. NYAKUNDIJUDGE