[2023] KEHC 26141 (KLR)
The court found that the applicant was sentenced to a term of five years' imprisonment after pleading guilty to trafficking narcotic drugs, an offence which carries a much harsher statutory penalty. The trial court exercised its judicial discretion and imposed a lenient sentence relative to the statutory minimum....
Source-derived case information.
- Citation
- [2023] KEHC 26141 (KLR)
- Parties
- Applicant: Emmanuel Munene; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E013 of 2021
- Procedural Posture
- Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- JN Onyiego
- Legal Topics
- Sentence Revision, Narcotic Offences, Judicial Discretion in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Munene
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the applicant has established grounds for revision of the sentence imposed by the trial court.
- 2 Whether the sentence imposed was harsh, manifestly excessive, or illegal.
- 3 Whether the application constitutes an abuse of court process given a similar application was previously determined.
Ratio Decidendi
The court found that the applicant was sentenced to a term of five years' imprisonment after pleading guilty to trafficking narcotic drugs, an offence which carries a much harsher statutory penalty. The trial court exercised its judicial discretion and imposed a lenient sentence relative to the statutory minimum. The applicant failed to demonstrate that the sentence was harsh, manifestly excessive, or that the trial court applied wrong principles or considered irrelevant factors. Furthermore, the applicant had previously filed a similar application for revision, which had already been determined and dismissed. The court held that the present application was unmerited and constituted an...
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
- The court finds the application to be an abuse of the court process.
Full Case Text
Judgment text and source record
26 paragraphs
Munene v Republic (Criminal Application E013 of 2021) [2023] KEHC 26141 (KLR) (17 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26141 (KLR)
Republic of Kenya
In the High Court at Garissa
Criminal Application E013 of 2021
JN Onyiego, J
November 17, 2023
Between
Emmanuel Munene
Applicant
and
Republic
Respondent
Ruling
1. The matter for determination before this court is a chamber summons filed on 12. 09. 2022 by the applicant herein, Emmanuel Munene seeking for orders inter alia; that the court be pleased to review his sentence and/or acquit him.
2. The application is premised on the grounds on its face wherein the applicant stated that he was charged with the offence of trafficking narcotics drug substances C/S 4(a) of Act No. 4 of 1994 and that he pleaded guilty to the same. He stated that he was sentenced to serve a period of five years’ imprisonment and that he has since been in custody for a period of over one year. He averred that he was a first offender and that he deserves mercy.
3. Mr. Kihara, the learned prosecutor opposed the application stating that the applicant had previously made a similar application under Criminal Revision No. 172 of 2023 before this court and that the same had been rejected. In urging that the application be dismissed, Counsel stated that this was a clear case of abuse of the court procedure.
4. The application proceeded by way of written submissions wherein the applicant via his submissions filed in court on 12. 09. 2022 submitted that, on his own plea, he was convicted of the offence and further sentenced to five years’ imprisonment. That he committed the offence during covid due to idleness orchestrated by lack of jobs yet he needed to eke a living. He thus urged that he has since reformed for he is born again.
5. I have considered the material on record as well as the submissions made by the parties. The issue for determination is whether the applicant has made a case for revision of the sentence by the trial court.
6. Under Section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control Act, the Applicant ought to have been fined Kshs one (1) million or three times the market value of the narcotic drug or psychotropic substance whichever is greater and in addition to imprisonment for life.
7. From the proceedings, this court notes that the applicant was sentenced to serve a period of 5 years’ imprisonment after pleading guilty to the offence herein. In my view, when the applicant was sentenced by the trial court, that court exercised its judicial discretion. It therefore follows that this court can only interfere with such sentence if it is established that the sentence was either harsh or extremely lenient as to constitute miscarriage of justice. See MM1vRepublic (2022) eKLR
8. This court can also interfere with the exercise of such sentencing discretion if it is established that; the trial court applied wrong principles of the law in sentencing the Applicant; took into consideration irrelevant factors or the sentence is manifestly excessive;
9. In the case herein, the applicant did not demonstrate how the sentence by the trial court was harsh vis a vis that which has been provided for in the Act. To the contrary, he was very lucky to have gotten a lenient sentence.
10. In the present application, it was clear to the court that the trial court sentenced the applicant to serve a legal sentence. This court has taken note of the fact that the incident happened during the COVID 19 outbreak and that many people were affected in transacting illegal trade. However, the fact that many people were affected by the outbreak of the disease did not warrant them to engage in committing crimes.
11. In the premises therefore, this court is of the view that the application for revision of sentence made by the applicant is unmerited. Further, a similar application having been heard and determined vide Cr. Revision No. 172/2023 this court cannot revisit the same subject. Accordingly, it is my finding that the application is clearly an abuse of the court process hence dismissed.
DATED, SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023. .................J.N. ONYIEGOJUDGE