[2022] KEHC 14971 (KLR)

Okoye v Republic (Criminal Appeal E072 of 2022) [2022] KEHC 14971 (KLR) (Crim) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14971 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E072 of 2022

JM Bwonwong'a, J

October 18, 2022

Between

Princess Okoye

Appellant

and

Republic

Respondent

(Being an appeal against the sentence delivered by Hon. Njagi, S.R.M on 24/12/2020 in JKIA CM’S Court in Criminal Case No. 29 of 2019 Republic vs Princess Okoye)

Judgment

1. The appellant was charged with 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. She was convicted and sentenced to a fine of Kshs. 9,421,839 in count 1 and in default to serve one-year imprisonment in accordance with section 28 of the Penal Code (Cap 63) Laws of Kenya; which was in relation to unlawfully trafficking in a narcotic drug namely 897. 31 grams of heroin with a market value of Kshs 3,140,613/=. This heroin was hidden inside daima and bio milk bottles.

2. In count 2 she was sentenced to a fine of Kshs 1,908,165 and in default to serve one-year imprisonment in accordance with section 28 of the Penal Code (Cap 63) Laws of Kenya; which was in relation to unlawfully trafficking in a narcotic drug namely 181. 73 grams of heroin with a market value of Kshs 636,055/=. This heroin was hidden and conveyed in her rectum.

3. In addition, the appellant was sentenced to ten (10) years imprisonment.

4. Finally, the appellant was to be deported (sent back) to Nigeria upon completion of her sentence in accordance with section 26A of the Penal Code(Cap 63) Laws of Kenya.

5. The sentences were ordered to run consecutively. from the time the applicant took plea on 11/03/2019 as provided for in section 333 (2) of the Criminal Procedure Code(Cap 75) Laws of Kenya.

6. Being aggrieved by the decision, she filed a petition of appeal challenging the sentence.

7. The grounds raised are that she is deeply remorseful and regrets her actions, she is a first offender, the sentence meted out by the trial court was harsh and excessive and she is 30 years old and urges the court to give her a second chance by granting her a lenient sentence.

8. The appellant mitigated further by informing the court that she is the sole breadwinner of her family of three children as her husband had passed on, her youngest child was only 3 months at the time of her arrest and she has engaged in rehabilitative programs while in prison. She urged the court to grant her a lenient sentence considering all mitigating factors.

Analysis and determination 9. It is trite law that sentencing a matter for the discretion of a trial court and an appeal court should only interfere, where the trial court misdirected itself in principle or the sentence is manifestly excessive.

10. I find as persuasive the decision of the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in which that court pronounced itself as follows:“It is now settled law, following several authorities by this court and the High Court that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive on the circumstances of the case, or the trial court overlooked some material factor, or acted on a wrong principle. Even if, the Appellate Court might itself have not passed that sentence and feels that the sentence is heavy these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters already stated is shown to exist."

11. In this instant appeal, the court considered the offence the appellant was charged with, being that of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 which 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; or(b)…..”

12. In the present appeal, the appellant was sentenced to serve twelve 10 years imprisonment and to pay a fine of Kshs. 9,421,839 and Kshs. 1,908,165 and in default to serve one-year imprisonment in respect of each count. The custodial sentences were ordered to run consecutively.

13. Under section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control Act, the convicted person is liable to be sentenced to a fine of 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. In this appeal, the appellant was sentence to pay a fine three times the value of the narcotic drugs in addition to the sentence of 10 years.

14. Additionally, I find as persuasive the decision in Shadrack Kipkoech Kogo vs Republic, Eldoret Criminal Appeal No. 253 of 2003, in which the Court of Appeal pronounced itself as follows:“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.”

15. I find that the trial court erred in law in ordering the default custodial sentences to run consecutively; since the two counts arose out of one transaction. I am therefore entitled to interfere with the sentencing discretion of the trial court by ordering those prison sentences to run concurrently; since the two counts arose out of one transaction. The prosecution wrongly split those charges into two counts; which splitting is legally impressible.

16. The applicant was arrested on 03/03/2020. She was convicted and sentenced on 25/11/2020, which translates to a pre-trial custody period of one year and nine months. I therefore find that the trial court erred in law in failing to take into account the period the applicant was in custody in sentencing the applicant as mandatorily required by section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya.

17. In view of the principles set out in the foregoing authorities, I find that the trial court did not exercise its discretion properly with the result that the appellant is to serve ten years less one year and nine months; which sentence is to run from the date of conviction. It was wrong for the learned magistrate to order the sentence to run from the date of plea, because she was at that time presumed to be innocent in terms of article 50 (2) (a) of the 2010 Constitution of Kenya.

18. Additionally, upon completion of her prison sentence, the applicant is to recommended to be deported (repatriated) to Nigeria in terms of section 26A of the Penal Code (Cap 63) Laws of Kenya.

19. The upshot of the foregoing is that the appellant’s appeal partially succeeds as shown in the preceding paragraph.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe applicant in person.Ms Edna Ntabo for the Respondent