Maina v Republic (Criminal Revision E011 of 2023)  KEHC 2567 (KLR) (24 March 2023) (Ruling)
Neutral citation:  KEHC 2567 (KLR)
Republic of Kenya
Criminal Revision E011 of 2023
GL Nzioka, J
March 24, 2023
Hassan Kamau Maina
1.The applicant was arraigned before the Senior Principal Magistrate’s Court at Engineer charged vide Criminal Case. No. E1397 of 2022, with the offence of being in possession of Narcotics Drugs contrary to section 4 as read with section 4 (a) (ii) of the Narcotic Drugs and Psychotropic Substances Control Amendment Act No. 4 of 2022. The particulars of the charge are as per the charge sheet.
2.He pleaded guilty, was convicted and sentenced to pay a fine of Kshs. 100,000 or in default to serve a term of three (3) years imprisonment.
3.He now seeks for a review of the sentence vide an application filed on January 30, 2023. The application is supported his affidavit and a document labelled “mitigation grounds of revision” where he avers that he is a first offender. That he is remorseful, rehabilitated, has learnt to be a law abiding citizen. That he has acquired farming skills as part of his rehabilitation and will use the skills he has learnt to cater for his family. Further, that he has no pending appeal and is only applying for review of sentence and that the court considers the time he spent in custody.
4.The Respondent has not responded to the application despite being granted an opportunity to do so and therefore the application is unopposed.
5.The pre-sentence report dated; November 9, 2022 and filed in the trial court indicates that, the applicant is 40 years old and the 7th born out of ten (10) siblings. That both his parents are deceased. He is married and has four (4) children all in primary school. That he dropped out of secondary school in form 3 due to financial constraints and was working as a casual worker before his arrest.
6.That admits to having used bhang. Further he is remorseful and has learnt his lesson while in custody and seeks for leniency. His brother describes him as a hardworking person. However, the area local authority states that he has been implicated in possession of bhang but his behavior was salvageable if given a last chance. The Probation officer recommends that the applicant be sentenced to a non-custodial sentence under community service order for a period of five (5) months.
7.In considering the application, I note that the revisionary power of the High Court is provided for under sections 362 of the Criminal Procedure Code which states as follows:
8.However, the section should be read together with section 364 of the Code which provides as follow: -
9.It is therefore clear from the above provisions that, the court will only exercise its revisionary powers where, the impugned sentence is either incorrect, illegal or improper. Thus, the objective of revisionary jurisdiction is to set right a patent defect or error of jurisdiction or law. This jurisdiction will only be invoked where the decision under challenge is; grossly onerous, there is no compliance with the provisions of the law, or the finding re-ordered are based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely.
10.In the instant matter, the applicant was convicted of the offence under section 4 (a) (ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, which states as follows: -
11.Pursuant to the aforesaid the fine imposed is lawful and legal. However, after considering the fact that the applicant pleaded guilty and saved court’s time and that, he is a first offender and further the pre-sentence report is favorable, I find this is a suitable case for review and I make the following orders: -a.He shall serve a custodial sentence of six (6) months with effect from the date of conviction that is October 24, 2022 without remission.b.He shall then serve a sentence of six (6) months on community service order at a place to be identified by the in charge Probation Department and records thereof to be filed in court.c.In case the applicant will breach the community service order he shall finish the remaining sentence in custody.
12.It is so ordered
DATED, DELIVERED AND SIGNED ON THIS 24TH DAY OF MARCH, 2023GRACE L. NZIOKAJUDGE In the presence of:Appellant present in person, in court virtuallyMr. Atika for the RespondentMs Ogutu: Court Assistant