[2021] KEHC 9549 (KLR)
The court found that the petitioner had not established any legal or factual basis for resentencing or for release under a Community Service Order. The trial court had already exercised leniency by imposing a 10-year sentence instead of the statutory life sentence and fine. Furthermore, the court held that it lacked...
Source-derived case information.
- Citation
- [2021] KEHC 9549 (KLR)
- Parties
- Applicant: Tom Mboya Njiri; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 76 of 2019
- Procedural Posture
- Criminal Resentencing / Judgment
- Outcome
- petition dismissed
- Judges
- DO Ogembo
- Legal Topics
- Narcotic Drugs, Sentencing Principles, Resentencing Applications
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Tom Mboya Njiri
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Resentencing / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing for the offence of trafficking in narcotic drugs.
- 2 Whether the court has jurisdiction to interfere with the sentence imposed by the trial court.
- 3 Whether the petitioner should be released under a Community Service Order.
Ratio Decidendi
The court found that the petitioner had not established any legal or factual basis for resentencing or for release under a Community Service Order. The trial court had already exercised leniency by imposing a 10-year sentence instead of the statutory life sentence and fine. Furthermore, the court held that it lacked jurisdiction to interfere with the sentence as the matter did not fall within the scope of the Muruatetu decision. Consequently, the petition for resentencing was dismissed for lack of merit.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 76 OF 2019
TOM MBOYA NJIRI................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.......................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein Tom Mboya Njiri was charged with the offence of trafficking in narcotic drugs contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic Substance Control Act No. 4 of 1994. He was tried and convicted of the offence and jailed for a term of ten years on 30/8/2016.
2. Particulars are that on 19/4/2016 at Weigh Bridge area, Mariakani Location Kaloleni Sub-County within Kilifi County, he was found trafficking in narcotic drugs by transporting 85 kgs of cannabis sativa with a street value of Kshs. 1 million in a motor vehicle registration number KBB 666P Toyota Caldina in contravention of the said Act.
3. The Petitioner is now in this court for resentencing but he has not laid down the basis for that resentencing. The Petitioner further wants to be released under Community Service Order, but has not laid basis for such release. The prosecution submitted, correctly in my view, that the trial court exercised its discretion to sentence the Petitioner to 10 years, while the law states that he ought to have been jailed for life, and a fine of Kshs. 1,000,000/= in addition. In my view, the Petitioner was extremely lucky. He should not prode fate any further. Because he was sentenced to serve only 10 years, he has the courage to ask to be placed on Community service.
4. Further, this Court does not have the jurisdiction to interfere with the said sentence since the matter does not fall within the ambit of Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
5. In the circumstances, the Petitioner remains a lucky lad, because if he had appealed a stiffer sentence would have been imposed.
6. The upshot is that the Petition lacks merit. The same is dismissed.
Dated, Signed and Delivered at Mombasa this 26th dayof January, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person via video link
Mr. Fedha for DPP
Ms. Peris Court Assistant