[2024] KEHC 7414 (KLR)
The court found that, although the Sentence Review Report recommended a non-custodial sentence only for the 2nd applicant, the period of two months already served by all applicants was sufficient punishment for the offence of possession of cannabis sativa. The court emphasized the need to consider alternative...
Source-derived case information.
- Citation
- [2024] KEHC 7414 (KLR)
- Parties
- Applicant: Joseck Mogambi; Applicant: Enock Robert; Applicant: Shadrack Nyaribo; Applicant: Victor Arasa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E027 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Sentence Revision
- Outcome
- Custodial sentences revised; 2nd applicant to serve community service order; 1st, 3rd, and 4th applicants' sentences suspended for one year on condition of good behavior.
- Judges
- WA Okwany
- Legal Topics
- Sentencing Principles, Narcotic Offences, Community Service Orders, Suspended Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseck Mogambi
Applicant
Enock Robert
Applicant
Shadrack Nyaribo
Applicant
Victor Arasa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Revision
Legal Issues
- 1 Whether the custodial sentences imposed on the applicants for possession of cannabis sativa should be revised to non-custodial or alternative sentences.
- 2 Whether the period already served by the applicants constitutes sufficient punishment for the offence committed.
- 3 Whether the court should exercise its discretion to impose suspended sentences or community service orders in light of prison congestion.
Ratio Decidendi
The court found that, although the Sentence Review Report recommended a non-custodial sentence only for the 2nd applicant, the period of two months already served by all applicants was sufficient punishment for the offence of possession of cannabis sativa. The court emphasized the need to consider alternative sentences in appropriate cases, especially in light of prison congestion. Exercising its discretion under Section 15 of the Criminal Procedure Code, the court substituted the custodial sentences of the 1st, 3rd, and 4th applicants with suspended sentences for one year, conditional on good behavior, and directed that the 2nd applicant serve a community service order. The court held...
Court Disposition
Custodial sentences revised; 2nd applicant to serve community service order; 1st, 3rd, and 4th applicants' sentences suspended for one year on condition of good behavior.
Orders
- The 2nd applicant shall serve a Community Service Order at Esanige Primary School under the supervision of the head teacher for six months.
- The 1st, 3rd, and 4th applicants' one-year imprisonment sentences are substituted with suspended sentences for one year, conditional on not committing any offence during that period.
Full Case Text
Judgment text and source record
27 paragraphs
Mogambi & 3 others v Republic (Criminal Revision E027 of 2024) [2024] KEHC 7414 (KLR) (13 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7414 (KLR)
Republic of Kenya
In the High Court at Nyamira
Criminal Revision E027 of 2024
WA Okwany, J
June 13, 2024
Between
Joseck Mogambi
1st Applicant
Enock Robert
2nd Applicant
Shadrack Nyaribo
3rd Applicant
Victor Arasa
4th Applicant
and
Republic
Respondent
(From the original Conviction and Sentence in the Chief Magistrates’ Court at Nyamira, Criminal Case No. MCCR E019 of 2024 by Hon. B.A. Jumar, Resident Magistrate on 25th January 2024)
Ruling
1. The Applicants were convicted on their own plea of guilty for the offence being in possession of cannabis sativa (bhang) contrary to Section 3 (1) as read with Section 3 (2) of the Narcotic Drugs and Psychotropic Control Act No. 4 of 1994. The trial court sentenced each of them to serve 1 years’ imprisonment. The Applicants have each served 2 months of their sentences. The Sentence Review Report filed by the Probation Officer on 3rd April 2024 recommends a non-custodial sentence in respect of the 2nd Applicant. I therefore direct that the 2nd Applicant serves a Community Service Order at Esanige Primary School under the supervision of the school head teacher for a period of 6 months.
2. The Sentence Review Report does not recommend a non-custodial sentence in respect to the 1st, 3rd and 4th Applicants. The said report indicates that the said Applicants community and family members were not agreeable to their release.
3. I have however considered the fact that all the Applicants have already served 2 months of the sentence. I consider the said period to be sufficient punishment for the offence that they committed and this is the reason why the matter was listed for consideration under the prison decongestion program.Section 15 of the Criminal Procedure Code provides thus:-(1)Any court which passes a sentence of imprisonment for a term of not more than two years for any offence may order that the sentence shall not take effect unless during the period specified by the court (herein called the “operational period”) the offender commits another offence, whether that offence is punishable by imprisonment, corporal punishment or by a fine.(2)Where the offender is convicted of an offence during the operational period the sentence for the first offence in respect of which the offender was convicted under subsection (1) shall thereupon take effect.(3)Where under subsection (2) the sentence passed for the first offence under subsection (1) takes effect the sentence passed for the subsequent offence shall run consecutively to the sentence passed for the first offence.
4. Guided by the above provision and considering that our prisons are congested, courts are called upon to find alternative sentences other than custodial sentences in appropriate cases. In my view, this was an appropriate case for non-custodial sentence having regard to the nature of the offence that the applicants committed.
5. Consequently and in exercise of this court’s discretionary powers, I direct that the 1st, 3rd and 4th Applicants shall substitute the one-year imprisonment sentence to a suspended sentence on condition that they shall not commit any other offence for the next one year from today’s date. In breach of the conditions attached to the sentence, the applicants shall be arrested and brought before this court for an order that they continue with their custodial sentence in accordance with the law.Orders accordingly.
DATED AND DELIVERED AT NYAMIRA ON THIS 13TH DAY OF JUNE 2024. W. A. OKWANYJUDGE