1.The Applicant, Andrew Kerosi Nyachweya through an application dated 11th March,2020 moved this Court for sentence rehearing.
2.The facts as contained in the affidavit in support of the application indicate that the Applicant was charged, convicted and sentenced to life imprisonment for the offence of trafficking narcotic drugs contrary to Section 4(a)of the Narcotic Drugs and psychotropic substances in Molo CM Court Criminal Case No. 250 of 2014. Thereafter, he lodged an appeal at Nakuru High Court against both sentence and conviction through Criminal Appeal No. 250 of 2014 but it was dismissed. Dissatisfied with the High Court decision the Applicant lodged an appeal before the Court of Appeal but did not receive any communication or response from the Court of Appeal Registry.
3.The Applicant now seeks a review of the sentence imposed by the trial Court.
4.It has to be noted from the outset that I am the one who meted the sentence in question, while serving as a magistrate in Molo Law Courts. When the applicant was asked for his comments, he stated that he was comfortable with me handling the case as I was fully conversant with the facts. The State Counsel was of the same opinion.
5.This is an application for resentencing. Ideally, the court that heard the witnesses would be the most ideal to handle an applicant of this nature, but with the regular transfers of Judges and Judicial Officers, that is not possible. It is thus left to the current judges and magistrates to place themselves in the shoes of the trial court.
6.I am thus of the opinion that there is no prejudice to the accused or the Prosecution. A resentencing is not an appeal so as to be said that this court is sitting on appeal over its own decision. I concur with the accused that having being seized of the facts I would be the most ideal person to handle the matter, despite the change of my position from a magistrate to a judge.
7.Having stated the above, I will now go to the matter before me.
8.In his submissions, the Applicant argues that the mandatory life sentence is excessive, degrading and in contravention of Articles 50, 25 (c),27(I) of the Constitution and Article 10 of the Universal Declaration of Human Rights.
9.He also argues that the main aim of Sentencing Policy guidelines is to promote consistency, transparency and certainty in the sentencing process with the aim of ultimately enhancing the delivery of justice and promoting confidence in the Judicial system.
10.In light of the above, the Applicant posited that life imprisonment does not support the above principles.
11.Citing the case of Douglas Muthaura Ntoribi vs Republic  eKLR where the court held that-the Applicant submitted that for the 10 years that he has been in custody he has undergone rehabilitation programs which has transformed his life in all dimensions. He stated that he has achieved the following recommendable testimonials: -i.National government trade test grade iii in Motor Vehicle Mechanicii.National government trade test grade ii in Motor Vehicle Mechaniciii.National government trade test grade iii in carpentry and joineryiv.National government trade test grade ii in carpentry and joineryv.National government trade test grade iii in Motor Vehicle electrical installation.
12.In further buttressing his submissions, the Applicant placed reliance on the case of S vs Mchunu and Another (AR24/11)  ZAKZPHC 6, Kwa Zulu Natal High Court held that:
13.The Applicant also relied on the case of Sammy Wanderi Kugotha vs Republic  eKLR where the court in setting aside a life sentence and substituting it with 20 years’ imprisonment for a convict who had been charged with defilement opined as follows: -
14.The applicant further urged the court to take into account the time spent in custody by dint of section 333 (2) of the Criminal Procedure Code (Cap 75).
15.The Respondent was not opposed to the Application.
Analysis & Determination
16.The only issue that arises for determination is whether the Applicant’s plea for resentencing is merited.
17.In this case the applicant was charged under Section 4 (a) of the Narcotic Drugs and Psychotropic Substances Act provides that –
18.The Applicant was sentenced to pay fine of Ksh.1 million and in addition to serve life imprisonment.
19.The issue of mandatory sentences was addressed in Francis Karioko Muruatetu & others vs Republic (2017) eKLR (Muruatetu 1) where the Supreme Court held that the mandatory death sentence prescribed for the offence of Murder by section 204 of the Penal Code was unconstitutional. The Court took the view that:
20.In clarifying the import case of its earlier decision, in Muruatetu 2 the Supreme Court gave the following guidelines:
21.In light of the fact that there is no evidence of pending appeal before any court in regards to this matter and of the directions under paragraph (iii), (vi)& (viii) I am of the opinion that this court is clothed with jurisdiction to determine this application.
22.Subsequent to the above decision, a lot of emerging jurisprudence has come to the fore on the question of these so called mandatory sentences in other offences other than murder.
23.For instance, in Fappyton Mutuku Ngui vs Republic  eKLR the court directed the trial court to rehear the Applicant’s sentence on grounds that following the decision in the Muruatetu case several decisions have been made by various courts wherein minimum sentences imposed have been tampered with as a result.
24.The court in Hashon Bundi Gitonga vs Republic  eKLR held that minimum sentence portends real possibility of a harsher or excessive sentence being imposed on an individual who would after mitigation be entitled to a lesser sentence. That therein lays prejudice.
25.From the foregoing, it is indeed correct to state that by prescribing mandatory sentences, the Narcotic Drugs and Psychotropic Substances Act takes away a court’s discretion to impose a sentence it considers appropriate in any given circumstances.
26.In this case The Appellant in mitigation told court that
27.In sentencing the Applicant I had stated that: -
28.It is clear that in meting out the sentence as required by the Act, the court did not exercise a discretion as the assumption that no such discretion existed . Now it is settled that even where the so called mandatory sentences are prescribed, the court has a discretion to mete out any other sentence that it deems fit and just in the circumstances.
29.Flowing from the above, I have considered the above mitigation and also the fact there was no evidence that the Appellant was a repeat offender.
30.The Applicant stated that he had undertaken rehabilitative programmes while in prison however he did not attach any documentary evidence in support of his case.
31.I have also considered that there were no aggravating circumstances in this case. The drugs did not find their way to the streets and they were destroyed after 14 days from the date of sentencing.
32.Therefore, I proceed to order that the sentence of life imprisonment imposed on 26th September,2014 is hereby set aside and resentence the applicant to 15 years imprisonment. The sentence will run from the date the applicant was first remanded in lawful custody i.e. 11th July,2013.