Diallo v Republic [2022] KEHC 15042 (KLR)

Diallo v Republic (Criminal Revision 173 of 2019) [2022] KEHC 15042 (KLR) (Crim) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15042 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision 173 of 2019

JM Bwonwong'a, J

October 18, 2022

Between

Abdoulaye Diallo

Accused

and

Republic

Prosecutor

(-(Being an application for revision of the sentence of Hon. Gandani, CM, delivered on 8/11/2017 in the Chief Magistrate’s Court at Kibera in Criminal Case No.504 of 2016, Republic V Abdoulaye Diallo)

Judgment

1. The applicant has applied for revision of his sentence of a fine of Kshs 24,000/- in default to serve 6 months imprisonment. He was also in addition sentenced to ten years (10) imprisonment. The two prison sentences were ordered to run consecutively.

2. The statutory penalty in section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 is couched in the following terms:“Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—a.in respect of any narcotic drug or psychotropic substance to a fine of one 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;……..”

3. The applicant was convicted of unlawfully trafficking in narcotic drugs namely 200 grams of cocaine, whose market value was Kshs. 8,000/- contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The said drugs were concealed in four pairs of ladies’ shoes and twenty ladies’ wallets.

4. The basis of his revision is that the trial court did not take into account the pre-trial remand period, when he was in custody p`ending his trial in that court.

5. A perusal of the record of the proceedings shows that he was arrested on February 4, 2015 and was taken to court on the same date.

6. He was found guilty and convicted of that offence on November 8, 2017. Thereafter he was sentenced on January 18, 2018.

7. During the entire period he was in pre-trial custody, which translates to a period of about two years (2) and six months (6), that is from February 4, 2015 to November 8, 2017.

8. In sentencing the applicant, the trial court did not take into account the pre-trial custody period of about two years and 6 months. I therefore find that the trial erred in law, because section 333 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya, mandatorily required that court to take that period into account.

9. Furthermore, I find that the custodial sentences should have been ordered to run concurrently and not consecutively.

10. In the circumstances, I find that there is basis to interfere with the sentencing discretion of the trial court.

11. In view of the above findings, I hereby order that the custodial sentences are to run concurrently from the date of conviction. I further order that the applicant is to serve ten years less two years and 6 months, which sentence is to run from the date of conviction.

12. Additionally, upon completion of his prison sentence the applicant is to be deported (repatriated) back to the country of his nationality namely Republic of Guinea (Conakry) in terms of section 26A of the Penal Code (Cap 63) Laws of Kenya.

13. In the premises, the application succeeds as shown in the foregoing paragraphs.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantThe accused/applicant in personMs. Edna Ntabo for the Respondent