Jager v Republic [2024] KEHC 89 (KLR)

Jager v Republic (Criminal Revision E056 of 2023) [2024] KEHC 89 (KLR) (17 January 2024) (Ruling)

Neutral citation: [2024] KEHC 89 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision E056 of 2023

DR Kavedza, J

January 17, 2024

Between

Elize De Jager

Applicant

and

Republic

Respondent

Ruling

1. Before me is an application dated October 3, 2023 by the applicant, wherein she seeks revision of the 16-year sentence she is currently serving. She prays for a non-custodial sentence under the prison decongestion exercise and urged the court to consider that she has been in prison for 9 years.

2. The applicant was initially charged, convicted and sentenced to life imprisonment in JKIA Criminal Case No. 51 of 2016 for the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act.

3. Aggrieved by the conviction and sentence, she appealed to the High Court in HC Criminal Appeal No 149 of 2017 wherein her conviction was affirmed by Hon Kimaru J. The applicant’s sentence was however substituted with a fine of Kshs 53,998,600 in default, to serve one-year imprisonment, and a further sentence of 15-years imprisonment, with effect from November 22, 2014, when she was arrested.

4. I have carefully considered the probation report and the recommendation from Lang’ata Women Maximum Prison and find that the same are favourable. Further, the applicant has a strong social support system from the community and in particular, her sister who is willing to support and live with her in their family home in Barbeton if she is released. Furthermore, the prison authorities report that she is well behaved in prison and her general conduct is worth emulating. Consequently, she has been recommended for early release.

5. The Chief Justice (CJ) vide the memo dated December 7, 2022 directed that the High Court may conduct sentence reviews for convicted prisoners who are either serving sentences of less than three (3) years or those serving longer sentences but have a balance of three (3) years and below to serve.

6. In this instant case, I note that the applicant is set for release on July 22, 2025 and thus has a remainder of 1 year and 6 months to serve. She is therefore eligible for early release.

7. Accordingly, I allow the application for sentence review in the following terms:a.The sentence so far served is adequate and the applicant shall be set free unless lawfully held.b.Winnie Nguma and Tshoki Boitshoko Kgarane of the South African Embassy are directed to purchase a ticket for the applicant and hand it over to the Immigration department.c.The director general immigration services shall upon receipt of the ticket facilitate repatriation of the applicant.d.In the meantime, the applicant shall be held at langata police station to await repatriation.

8. Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JANUARY 2024. ...................D. KAVEDZAJUDGEIn the presence of:Ms Ntabo for the Respondent.Applicant/convict present.Joy C/A.