Ekare v Republic (Miscellaneous Criminal Application E045 of 2024) [2025] KEHC 19476 (KLR) (8 April 2025) (Ruling) Neutral citation: [2025] KEHC 19476 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT GARISSA MISCELLANEOUS CRIMINAL APPLICATION E045 OF 2024 JN ONYIEGO, J APRIL 8, 2025 BETWEEN JULIUS NKOLONG EKARE .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant was arrested and arraigned before the Chief Magistrate’s Court at Garissa on 08.06.2020, charged with the ofience of; traficking in narcotic drugs contrary to; Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 (herein “the Act”). 2. The particulars of the charge were that Julius Nkolong Enkare, Adam Gituma Mugambi and Mohammed Jelle Adan on 07.06.2020 at around 0200hrs at Kambi Samaki in Benane Division within Lagdera Sub County, Garissa County were found traficking narcotic drugs to wit 446Kg of cannabis sativa with an estimated street value of Kenya Shillings Thirteen Million, Three Hundred and Eighty Thousand Shillings (13,380,000) in a motor vehicle registration number KCL 015Y Isuzu Lorry in contravention of the said Act. 3. He was tried and convicted of the ofience and sentenced to serve twenty (20) years imprisonment and in addition, pay a fine of Kes. 40,140,000 in default serve one-year imprisonment. 4. Being dissatisfied with the determination of the court, he appealed against both the conviction and sentence before the High Court vide Criminal Appeal Case No. E005 of 2022. The court substituted the 20-year sentence with 10 years and in addition pay a fine of Kes. 5,000,000/- instead of Kes. 40, 140,000/-; in default, to serve one-year imprisonment and the sentences to run concurrently. 5. He subsequently filed another application dated 29.06.2024 seeking the court to consider the period spent in remand ranging from 06.06.2020 until the date of sentence being on 18.01.2022. This court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19476/eng@2025-04-08 1
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after considering the application, it allowed the same thus the period of 1 year, 7 months and 24 days was deducted from his sentence. 6. Once more, the applicant has filed the current application dated 18.12.2024 seeking to be released under section 4 of the Probation of the Offenders Act. 7. He stated that he did not appeal this court’s finding and therefore, his prayers be allowed. He also annexed several copies of certificates of the courses that he has undertaken while in prison. 8. At the hearing of the application, the applicant urged that his mother died while he was in prison and that the court be considerate to consider his prayers. The learned prosecutor on the other hand opposed the same by urging that the application lacks merit and further, this court is functus oficio. That previously, the applicant had made a similar application which the court dismissed. This court was therefore urged to dismiss the application herein as the same was a clear abuse of the court process. 9. I have considered the application and the oral submissions by the parties. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application and to issue the orders sought herein. 10. The applicant has moved this court to exercise its powers vide section 4 of the Probation of the Ofienders Act. He is seeking to be released on grounds that he has since reformed and that he has sufiered enough while in custody. 11. I have already listed several instances the applicant has moved this court in seeking his release and / or reduction of his sentence. On all the occasions, this court has pronounced itself as already listed elsewhere in this ruling. In my view, the applicant has exhausted his arsenals. This is so because this court does not have the jurisdiction to revise its findings any-more and as such, it must down its tools. In other words, this court is functus oficio. This is a classic case of abuse of the court process. 12. Accordingly, the application is dismissed with a warning to the applicant to stop further abuse of the court process. The prisons department should stop facilitating the abuse of court process through repetitive review applications over the same subject. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF APRIL 2025 J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19476/eng@2025-04-08 2
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