[2016] KEHC 298 (KLR)
The court found that while smoking bhang is a punishable offence, the applicant was a first offender and not a peddler. The court accepted the submissions from both counsels that justice should be tempered with mercy. Consequently, the original sentence of four months imprisonment was set aside and replaced with a...
Source-derived case information.
- Citation
- [2016] KEHC 298 (KLR)
- Parties
- Applicant: Zech Lennart Deutsh; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 162 of 2016
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- sentence varied; imprisonment set aside and fine imposed
- Judges
- CM Kamau
- Legal Topics
- Possession of Narcotics, Sentencing Principles, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zech Lennart Deutsh
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the sentence imposed on the applicant for smoking bhang was excessive and warranted revision.
- 2 Whether the applicant, as a first offender found with a smoked roll of bhang, should be shown leniency.
Ratio Decidendi
The court found that while smoking bhang is a punishable offence, the applicant was a first offender and not a peddler. The court accepted the submissions from both counsels that justice should be tempered with mercy. Consequently, the original sentence of four months imprisonment was set aside and replaced with a fine of Kshs. 20,000/-, with a default sentence of four months imprisonment. This decision was made within the parameters of Section 28(2) of the Penal Code, which allows the imposition of a fine as an alternative to imprisonment.
Court Disposition
sentence varied; imprisonment set aside and fine imposed
Orders
- The sentence of four months imprisonment is set aside and replaced with a fine of Kshs. 20,000/-.
- In default of payment of the fine, the applicant shall serve four months imprisonment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT VOI
CRIMINAL REVISION NO. 162 OF 2016
ZECH LENNART DEUTSH...........................APPLICANT
VERSUS
REPUBLIC.................................................RESPONDENT
(From original conviction and sentence in Criminal Case No. 847 of 2016 by Hon E.G Nderitu, Senior Principal Magistrate on 17th October 2016)
RULING ON REVISION
1. The court has carefully listened to the submissions by both the Applicant’s and the State counsels and notes that the Applicant was a first offender. He was found with a smoked roll of bhang and he was convicted on his own plea of guilty. He was thus sentenced to four (4) months imprisonment with no option of a fine. He was convicted and sentenced to prison on 17th October 2016 and has since served about fourteen (14) days imprisonment.
2. The counsel for the state has conceded to the Revision filed by M/S Obara & Obara Advocates on 25th October 2016 on the ground that the Applicant was not a peddler of drugs but that he was merely smoking a roll of bhang and that the court should temper justice with mercy.
3. Smoking of bhang is an offence under the Kenyan Laws and is punishable. It is for this reason that I am not inclined to let the Applicant go scot free. He must bear some responsibility for contravening the law. He could not purport that he did not know the difference between smoking a cigarette and smoking bhang as he contended during his mitigation before the Trial Court.
4. However, as he was not a peddler and was found with a smoked roll of bhang, tempering justice with mercy as was implored by the counsels for the State and the Applicant, I hereby set aside the four (4) months imprisonment and replace it with a fine of Kshs. 20,000/-. This is within the parameters of the amount of fine that I can impose as provided for in Section 28(2) of the Penal Code Cap 63 (Laws of Kenya). In default of the payment of the fine of Kshs. 20,000/- herein, the Applicant shall serve the sentence of four (4) months imprisonment.
5. It is so ordered.
DATED andDELIVERED at VOI this 1st day of November 2016
J. KAMAU
JUDGE
In the presence of:-
Obara..................................................................Applicant
Miss Anyumba......................................................for State
Ruth Kituva- Court Clerk