[2023] KEHC 24885 (KLR)

Ogbonnaya v Republic (Criminal Revision 4 of 2023) [2023] KEHC 24885 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24885 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 4 of 2023

DR Kavedza, J

November 7, 2023

Between

Godswill Okechukwu Ogbonnaya

Applicant

and

Republic

Respondent

(Being an application for revision of the sentence delivered by Hon. L.O Onyina on 21st October 2022 at JKIA Chief Magistrate’s Court criminal case no. E009 of 2021 Republic vs Goodswill Okechukwu Ogbonnaya & another vs Republic)

Ruling

1. The applicant filed an undated notice of motion seeking revision of his sentence. In the matter before the trial court, he was convicted for the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No 4 of 1994. The applicant was sentenced to pay a fine of Kshs 1,500,000, in default to serve 1-year imprisonment. In addition, he was sentenced to seven months imprisonment. The sentence was however reduced by six (6) months in consideration of the time spent in pre-trial custody.

2. The application is premised on the grounds on the face thereof and supported by an affidavit by the applicant. The averments made that sentence meted by the trial court was harsh and excessive. He is remorseful and prays for leniency. Since his incarceration, he has reformed and has completed several bible study courses. He prayed for a chance to be reintegrated back into society. Since his incarceration, his health has deteriorated having suffered from generalized fatigue, joint tenderness, regurgitation, and chest congestion. He prayed to be released.

Analysis and determination. 3. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code (cap 75) Laws of Kenya which provides that:The High Court may call for and examine the record of any criminal proceedings before any subordinate court to satisfy itself as to the correctness, legality, or propriety of any finding, sentence, or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

4. Article 165(6) of the Constitution provides that:The High Court has supervisory jurisdiction over the subordinate courts and over any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court.

5. On the merits of the Application, the applicant seeks a revision of the sentence of the magistrate court. The trial court had sentenced him to seven (7) years imprisonment in addition to the payment of a fine of Kshs 1,500,000. The custodial sentence was reduced to by six (6) months in consideration of the time spent in pre-trial custody.

6. The applicant’s application essentially seeks the exercise of this court’s discretion in sentencing. This court can only interfere with the exercise of sentencing discretion by the trial court if it determines that that discretion was wrongly exercised. The Court of Appeal in Ahmad Abolfathi Mohammed & another vs Republic Criminal Appeal No. 135 of 2016 (unreported) held on page 25 thus:“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with the exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive.”

7. In Bernard Kimani Gacheru v Republic, Cr App No.188 of 2000 this Court stated thus:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist.”

8. In the present application, it was clear to the court that the applicant is serving a sentence made pursuant to a conviction. The provisions of section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994provide as follows:4. Penalty for trafficking in narcotic drugs, etc.Any person who trafficks 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—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;

9. The law provides for life imprisonment for the offence the applicant was charged with. In the instant case, he was sentenced to serve 7 years imprisonment and pay a fine of Kshs 1. 5 million in default to serve 1-year imprisonment. Having in mind that sentencing is a matter for the discretion of the trial court, I find that the sentences imposed were justified.

10. The upshot of the foregoing analysis is that the application for revision application is found to be lacking in merit and is hereby dismissed.It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF NOVEMBER 2023D. KAVEDZAJUDGEIn the presence of: