Republic v Malik John Kyalo [2020] KEHC 1959 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

HCCR.REV. NUMBER 6 ‘B’ OF 2020

REPUBLIC...............................APPLICANT

VERSUS

MALIK JOHN KYALO.......RESPONDENT

R U L I N G

1. The Applicant herein, Malik John Kyalo was charged together with Alexander Mutua Titus (Co-accused) vide Kitui Chief Magistrate’s Court Criminal Case No.1235 of 2019 with the offence of being in possession of Narcotic Drugs contrary to Section 3(1) (a) of the Narcotic Drugs and Psychotropic Substances Act No.4 of 1994 with particulars being that on the 9th December 2019 at Kitui Township the Applicant and his co accused were jointly found in possession of Narcotic drugs to wit one stone of bhang in a box.

2. The Applicant and his co accused both pleaded guilty to the charge and the facts and were convicted on their own plea of guilty.  The two were sentenced to each serve 4 year imprisonment.

3. The Applicant has now moved this court for revision stating that he should be given a non custodial sentence because of his remorsefulness and that he has 2 children in school who require his material support.

4. I have considered this application and in particular the fact that the High Court at Machakos videKitui H.C. Revision NO.121 of 2020  revised the sentence of his co-accused to a suspended sentence of one year after her move this court for revision of his sentence.  I have also looked at the Applicant’s probation report and find that the same is favourable to him serving a non-custodial sentence.

5. In the premises I find merit in this application when especially at this time when the Covid 19 Pandemic has made it hard for prison facility to cope with large number of prisoners and maintain or keep health protocols as provided by the Ministry of Health guidelines.  This Court hereby in exercise of its powers under Article 165 (b) of the Constitution reduces the 4 year to sentence to one year non custodial sentence.  The Applicant shall serve one year Community Service at a public institution as directed by the Probation Officer other than  a school or any other learning institution.  He will be supervised by the Kitui Probation Officer whom he shall report to forthwith upon his release from prison and after all the Public Safety Guidelines from the Ministry of Health have been adhered to by G.K. Prison Kitui.

Dated, SignedandDeliveredatKituithis3rdday of November, 2020.

R. K. LIMO

JUDGE