[2023] KEHC 26101 (KLR)

Nyachweya v Director of Public Prosecution (Criminal Miscellaneous Application 26 of 2019) [2023] KEHC 26101 (KLR) (30 November 2023) (Resentence)

Neutral citation: [2023] KEHC 26101 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Miscellaneous Application 26 of 2019

HM Nyaga, J

November 30, 2023

Between

Andrew Kerosi Nyachweya

Applicant

and

Director Of Public Prosecution

Respondent

Resentence

1. The Applicant, Andrew Kerosi Nyachweya through an application dated 11th March,2020 moved this Court for sentence rehearing.

2. The facts as contained in the affidavit in support of the application indicate that the Applicant was charged, convicted and sentenced to life imprisonment for the offence of trafficking narcotic drugs contrary to Section 4(a)of theNarcotic Drugs and psychotropic substances in Molo CM Court Criminal Case No. 250 of 2014. Thereafter, he lodged an appeal at Nakuru High Court against both sentence and conviction through Criminal Appeal No. 250 of 2014 but it was dismissed. Dissatisfied with the High Court decision the Applicant lodged an appeal before the Court of Appeal but did not receive any communication or response from the Court of Appeal Registry.

3. The Applicant now seeks a review of the sentence imposed by the trial Court.

4. It has to be noted from the outset that I am the one who meted the sentence in question, while serving as a magistrate in Molo Law Courts. When the applicant was asked for his comments, he stated that he was comfortable with me handling the case as I was fully conversant with the facts. The State Counsel was of the same opinion.

5. This is an application for resentencing. Ideally, the court that heard the witnesses would be the most ideal to handle an applicant of this nature, but with the regular transfers of Judges and Judicial Officers, that is not possible. It is thus left to the current judges and magistrates to place themselves in the shoes of the trial court.

6. I am thus of the opinion that there is no prejudice to the accused or the Prosecution. A resentencing is not an appeal so as to be said that this court is sitting on appeal over its own decision. I concur with the accused that having being seized of the facts I would be the most ideal person to handle the matter, despite the change of my position from a magistrate to a judge.

7. Having stated the above, I will now go to the matter before me.

8. In his submissions, the Applicant argues that the mandatory life sentence is excessive, degrading and in contravention of Articles 50, 25 (c),27(I) of the Constitution and Article 10 of the Universal Declaration of Human Rights.

9. He also argues that the main aim of Sentencing Policy guidelines is to promote consistency, transparency and certainty in the sentencing process with the aim of ultimately enhancing the delivery of justice and promoting confidence in the Judicial system.

10. In light of the above, the Applicant posited that life imprisonment does not support the above principles.

11. Citing the case of Douglas Muthaura Ntoribi vs Republic [2018]eKLRwhere the court held that-“A good and working prison system should be able to reform convicts. There is no legal research which leads to the conclusion that capital offenders cannot be reformed”,the Applicant submitted that for the 10 years that he has been in custody he has undergone rehabilitation programs which has transformed his life in all dimensions. He stated that he has achieved the following recommendable testimonials: -i.National government trade test grade iii in Motor Vehicle Mechanicii.National government trade test grade ii in Motor Vehicle Mechaniciii.National government trade test grade iii in carpentry and joineryiv.National government trade test grade ii in carpentry and joineryv.National government trade test grade iii in Motor Vehicle electrical installation.

12. In further buttressing his submissions, the Applicant placed reliance on the case of S vs Mchunu and Another(AR24/11) [2012] ZAKZPHC 6, Kwa Zulu Natal High Court held that:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. it is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”

13. The Applicant also relied on the case of Sammy Wanderi Kugotha vs Republic[2021]eKLRwhere the court in setting aside a life sentence and substituting it with 20 years’ imprisonment for a convict who had been charged with defilement opined as follows: -“I note also that the appellant is a young person. The need to rehabilitate and reintegrate offenders into society to eke meaningful life after imprisonment is one of the objectives of punishment; it should never recede to the background in sentencing. In the circumstances of this case, life sentence may not serve such restorative or rehabilitative purposes for the young soul. I shall, therefore, impose a sentence that punishes the offender but also gives him an opportunity of re-integration into society to eke a meaningful life after imprisonment.”

14. The applicant further urged the court to take into account the time spent in custody by dint of section 333 (2) of the Criminal Procedure Code (Cap 75).

15. The Respondent was not opposed to the Application.

Analysis & Determination 16. The only issue that arises for determination is whether the Applicant’s plea for resentencing is merited.

17. In this case the applicant was charged under Section 4 (a) of the Narcotic Drugs and Psychotropic Substances Act provides that –“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;”

18. The Applicant was sentenced to pay fine of Ksh.1 million and in addition to serve life imprisonment.

19. The issue of mandatory sentences was addressed in Francis Karioko Muruatetu & others vs Republic (2017)eKLR(Muruatetu 1) where the Supreme Court held that the mandatory death sentence prescribed for the offence of Murder by section 204 of the Penal Code was unconstitutional. The Court took the view that:“Section 204 of the Penal Codedeprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”

20. In clarifying the import case of its earlier decision, inMuruatetu 2 the Supreme Court gave the following guidelines:“Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below as follows –i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under section 203 and 204 of the Penal Code.ii.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu.iii.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.iv.Where an appeal is pending before the court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.v.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code as well as those of the victim before deciding on the suitable sentence.vi.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following will guide the court –a.Age of the offenderb.Being a first offenderc.Whether the offender pleaded guilty.d.Character and record of the offendere.Commission of the offence in respect of gender based violence.f.The manner in which the offence was committed on the victim.g.The physical and psychological effect of the offence on the victim’s family.h.Remorsefulness of the offender.i.Possibility of reform and social adaptation of the offender.j.Any other factor the court considers relevant.k.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.l.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.

21. In light of the fact that there is no evidence of pending appeal before any court in regards to this matter and of the directions under paragraph (iii), (vi)& (viii) I am of the opinion that this court is clothed with jurisdiction to determine this application.

22. Subsequent to the above decision, a lot of emerging jurisprudence has come to the fore on the question of these so called mandatory sentences in other offences other than murder.

23. For instance, inFappyton Mutuku Ngui vs Republic [2019]eKLRthe court directed the trial court to rehear the Applicant’s sentence on grounds that following the decision in the Muruatetu case several decisions have been made by various courts wherein minimum sentences imposed have been tampered with as a result.

24. The court inHashon Bundi Gitonga vs Republic [2020] eKLR held that minimum sentence portends real possibility of a harsher or excessive sentence being imposed on an individual who would after mitigation be entitled to a lesser sentence. That therein lays prejudice.

25. From the foregoing, it is indeed correct to state that by prescribing mandatory sentences, the Narcotic Drugs and Psychotropic Substances Act takes away a court’s discretion to impose a sentence it considers appropriate in any given circumstances.

26. In this case The Appellant in mitigation told court that“I pray for leniency. I have a family”

27. In sentencing the Applicant I had stated that: -“Drug trafficking is a very serious offence. It is so serious that the state has set up agencies to specifically deal with the menace. The drugs herein would have found their way to the streets, ruining the lives of thousands of young Kenyans who have become addicts. Each accused is sentenced to life imprisonment. Further as required by the law each is fined Ksh.1 Million.”

28. It is clear that in meting out the sentence as required by the Act, the court did not exercise a discretion as the assumption that no such discretion existed . Now it is settled that even where the so called mandatory sentences are prescribed, the court has a discretion to mete out any other sentence that it deems fit and just in the circumstances.

29. Flowing from the above, I have considered the above mitigation and also the fact there was no evidence that the Appellant was a repeat offender.

30. The Applicant stated that he had undertaken rehabilitative programmes while in prison however he did not attach any documentary evidence in support of his case.

31. I have also considered that there were no aggravating circumstances in this case. The drugs did not find their way to the streets and they were destroyed after 14 days from the date of sentencing.

32. Therefore, I proceed to order that the sentence of life imprisonment imposed on 26th September,2014 is hereby set aside and resentence the applicant to 15 years imprisonment. The sentence will run from the date the applicant was first remanded in lawful custody i.e. 11th July,2013.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 30THDAY OF NOVEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMs Murunga for stateApplicant present