Kusanya v Republic [2023] KEHC 24696 (KLR)

Kusanya v Republic (Revision Case E171 of 2023) [2023] KEHC 24696 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24696 (KLR)

Republic of Kenya

In the High Court at Nakuru

Revision Case E171 of 2023

HM Nyaga, J

November 2, 2023

Between

Makusanya Kusanya

Applicant

and

Republic

Respondent

Ruling

1. This matter has been brought to me under the Prisons Decongestion exercise being undertaken by this court.

2. The Applicant Makusanya Kusanya was charged with the offence of Trafficking in Narcotics Drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act. The particulars being that on 24th November, 2020 at around 1400hrs at Show ground area in Nakuru County he was found trafficking by selling narcotic drugs Cannabis to wit 38 trolls (628gm) with a street value of Ksh. 7,600/=.

3. The matter was heard and the trial magistrate found that the evidence did not support the aforesaid offence. Guided by section 179(1) of the Criminal Procedure Code, the trial magistrate convicted the Applicant of a minor offence of being in possession of narcotic drugs contrary to section 3(1) of the said Narcotic Drugs and Psychotropic substances (Control) Act.

4. On 6th December, 2022, the Applicant was sentenced to 3 years’ imprisonment.

5. In the Sentence Review Report filed on 16th October 2023 the Probation Officer, Samuel Ndung’u, recommends probation for a period of six months.

6. According to the said report, the Applicant’s son stated that the accused was a hardworking person and he helped his family despite constrains on scarce resources. He claims that his mother is ailing and that they will do their best to make the Applicant comfortable and resettle down effectively.

7. The report further states that the applicant is suffering from cancer and his hand has been amputated. He has not undertaken any vocational course but has undergone guidance and counselling sessions and spiritual nourishment.

8. The Applicant does not admit committing the offence however he says he has learned a lesson while in prison.

9. In light of the above and with the view to decongest the prison, I hereby exercise judicial discretion and order the Convict/Applicant be released from prison forthwith and be placed on Probation for a period of six months.

10. File closed.

DATED, SIGNED & DELIVERED AT NAKURU THIS 2ND DAY OF NOVEMBER, 2023. H.M. NYAGA,JUDGE.In the presence of:Ms Murunga for stateApplicant