[2022] KEHC 2025 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MISC. CRIMINAL APPLN. NO. E060 OF 2021

ZURA NYANYA........................................APPLICANT

VERSUS

REPUBLIC...........................................RESPONDENT

RULING

1. The applicant, Zura Nyanya, approached this court through an undated Notice of Motion filed on 28th January 2021 in which she sought review of the sentence imposed on her by the lower court in JKIA Criminal Case No. 41 of 2018. In that case, the applicant was tried and convicted, alongside two others, with the offence of trafficking in narcotic drugs contrary to Section 4 (a)of theNarcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994.

2. The particulars of the charge that led to her conviction were that on 26th March 2018, at Jomo Kenyatta International Airport within Nairobi County, the applicant, jointly with her two co-accused and others not before the court, the applicant unlawfully trafficked a narcotic drug namely cocaine weighing 2102. 26 grams with a market value of KShs.8,409,040, by conveying it in a black and yellow travelling bag concealed in twelve Giorno Bagno soap wrapping papers.

3. Upon conviction, the applicant and her co-accused were sentenced to pay a fine of KShs.2. 4 million in default to serve one year imprisonment. In addition, they were sentenced to serve a custodial sentence of eight years. As the applicant was a Ugandan national, the trial court ordered that she be repatriated to her country of origin after serving her sentence.

4. In the grounds advanced in support of the application, the applicant averred that she was a first offender; that she was remorseful; that she was a young woman aged 33 years old and the sole breadwinner of her four children who were socially and psychologically adversely affected by her incarceration. She stated that her youngest child aged one and a half years was with her in prison. She requested the court to revise her sentence by factoring in the period of three years she had spent in remand during the trial.

5. At the hearing, both the applicant and the respondent chose to prosecute the application by way of oral submissions. In her submissions, the applicant reiterated the grounds premising her application but she contradicted herself by applying that the time she had spent in custody be reduced from her sentence while at the same time praying for a non custodial sentence to give her an opportunity to take care of her children.

6. The application was not opposed by the respondent. The learned prosecuting counsel Mr. Mutuma submitted that he was not averse to this court reviewing the applicant’s sentence to factor in the time she had spent in custody during the trial, if the trial court had not considered the same.

7. At the instance of the respondent, the court directed that a sentence review report be filed which was done on 2nd July 2021. The report confirmed that the applicant was a first offender and that she was a mother of four children, one of whom was with her in prison. According to the report, the applicant’s mother who was currently taking care of the other three children was elderly, sick and was facing difficulties taking care of the children. The probation officer who authored the report found the applicant unsuitable for a non custodial sentence allegedly because she was not remorseful as she continued denying having committed the offence subject of her conviction.

8. I have considered the application, the oral submissions made by the parties as well as the probation officer’s report. I find that the application invokes the revisional jurisdiction of this court which is donated by Section 362 as read with Section 364 of the Criminal Procedure Code.

Section 362 of the Criminal Procedure Code empowers this court to revise and correct any order or sentence passed by the lower court if it was satisfied that the order or sentence was illegal or if there was a mistake, irregularity or impropriety in the proceedings leading to the making of the impugned decision or sentence.

9. In this case, the trial court’s pre-sentence notes show clearly that in sentencing the applicant, the learned trial magistrate considered the applicant’s mitigation and specifically that she was a first offender, her age, the pre-sentence report filed before it; the quantity and value of the recovered cocaine and the period the applicant had spent in lawful custody.

In view of the foregoing, the applicant’s complaint that the learned trial magistrate erred by failing to take into account the period she was in lawful custody during the trial as required by Section 333 (2) of the Criminal Procedure Code lacks foundation and cannot be sustained.

10. It is settled law that sentencing is always at the discretion of the trial court. In this case, in the exercise of his discretion, the learned trial magistrate as stated earlier sentenced the applicant to pay a fine of KShs.2. 4 million in default to serve one year imprisonment and in addition, to serve eight years imprisonment.

The penalty for the offence is set out in Section 4 (a)of theNarcotic Drugs and Psychotropic Substances (Control) Act which is a fine of KShs.1 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.

11. From the application and the applicant’s submissions, it is clear that the only challenge made to the legality of the impugned sentence was the claim that in passing sentence, the learned trial magistrate failed to comply with Section 333 (2) of the Criminal Procedure Code which as noted earlier lacks substance given that the record of the trial court proves the contrary. In this case, I have found nothing in the court record to show that the impugned sentence was either illegal or was a product of some mistake or impropriety or irregularity in the proceedings before the trial court. Given the nature and seriousness of the offence, I am satisfied that the sentence imposed by the trial court was lawful and well deserved.

12. Though I sympathize with the applicant’s personal circumstances as indicated in the mitigating factors advanced in support of the application, I am unable to find any legal basis that would warrant revision of the trial court’s sentence. The said mitigating factors do not fall within the parameters for review as stipulated in Section 362of theCriminal Procedure Code.

13. Another reason why the application must fail is because under Section 364 (5) of the Criminal Procedure Code, this court is barred from entertaining an application for revision of an order, finding or sentence at the insistence of a party who could have appealed against the order or decision sought to be reviewed. The applicant herein had a right of appeal and since she was evidently aggrieved by the custodial sentence imposed by the trial court, she ought to have appealed against that sentence instead of filing the instant application.

14. For the foregoing reasons, I find no merit in the application and it is accordingly dismissed.

It is so ordered.

DATED, SIGNED AND DELIVEREDAT NAIROBI THIS 3RD DAY OF FEBRUARY 2022.

C. W. GITHUA

JUDGE

In the presence of:

Mr. Mukungu for the applicant

Applicant present

Mr. Kiragu for the respondent

Ms Karwitha: Court Assistant