Mutharimi v Republic [2023] KEHC 26139 (KLR)

Mutharimi v Republic (Miscellaneous Criminal Application E012 of 2021) [2023] KEHC 26139 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26139 (KLR)

Republic of Kenya

In the High Court at Garissa

Miscellaneous Criminal Application E012 of 2021

JN Onyiego, J

November 17, 2023

Between

Edwin Mutharimi

Appellant

and

Republic

Respondent

Ruling

1. The matter for determination before this court is chamber summons filed on 12. 09. 2022 by the applicant herein, Edward Mutharimi seeking for ordersinter alia; that the court be pleased to review his sentence and be given an affordable fine.

2. The application is premised on the grounds on its face and supported by the affidavit of the applicant in which he stated that he was charged with the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. That he pleaded guilty to being found in possession of 62 rolls of bhang with a street value of kshs 12,400 thus prompting the trial court to sentence him to five years’ imprisonment. In his application, he urged this Honourable Court to be lenient enough by reducing his sentence or well still, set him free. In his submission, the applicant stated that; he has since reformed; he is born again; he is a first offender; he is the sole bread winner to his family which is now suffering and that the sentence is excessive.

3. Mr. Kihara, the learned prosecutor for the respondent opposed the application stating that the applicant had previously made a similar application under Criminal Revision No. 193 of 2023 before this court and that the same had been rejected. In urging that the application be dismissed, Counsel stated that this was a clear misuse of the court process.

4. I have considered the material on record as well as the submissions made by the parties. This court has been called upon to review the sentence meted out by the trial court.

5. The Applicant was charged under Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act which provides that:“Any person who traffics 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; or(b)…..”

6. From the proceedings, this court notes that the applicant was sentenced to serve a period of 5 years’ imprisonment after pleading guilty to the offence herein.

7. It is my view that this being a case of trafficking narcotic drugs, the applicant is not entitled to leniency. This is more so because, had the drug been released to the market, it would have had great health and psychosocial adverse effect on the consumers. Rather than be released, the applicant should remain in custody so that the sentence can serve as a deterrence.

8. The above notwithstanding, the court notes that it had previously pronounced itself in reference to the matter herein via Criminal Revision 193/2023 and as such, the application is a clear abuse of the court process.

9. For the reasons above stated, I find that this is a good case for dismissal and I proceed to do so.

DATED, SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023J.N. ONYIEGOJUDGE