Abel Kirira Kiige v Republic [2018] KEHC 5827 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. 18 OF 2017

ABEL KIRIRA KIIGE........APPELLANT

VERSUS

REPUBLIC.......................RESPONDENT

[Appeal from the original sentence in Criminal Case No. 18 of 2017 at Kangema by D. M. Kivuti, Senior Resident Magistrate, dated 18th January 2017]

JUDGMENT

1. The appellant pleaded guilty to possession of narcotic drugs contrary to section (2) (a) and 3 (1) of the Narcotic Drugs and Psychotropic Substances Act, No. 4 of 1994. He was sentenced to seven yearsimprisonment.

2. The particulars were that on 11th January 2017 at Kairo Sub-location, Mathioya Sub-county within Murang’a County, he had 27 rolls and 50 gramsof cannabis with a street value of Kshs 600 which was not in the form of a medical preparation.

3. The petition of appeal challenged both the conviction and sentence. However, on 25th June 2018, the appellant abandoned the appeal on conviction. He onlychallenges the sentence.

4. The appellant pleaded for leniency. He said the sentence was too harsh. He also said that his children require parental care and support; that he suffers from a chest illness; and, that the prison is unable to supply him with his favourite diet of vegetables. He prayed for a non-custodial sentence.

5. Learned Prosecution Counsel opposed the appeal.

6. This is a first appeal to the High Court. I have re-evaluated all the evidence on record and drawn my own conclusions.  Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32, Kariuki Karanja v Republic [1986] KLR 190.

7. The charge was read and explained to the appellant in Kiswahili, a language in which he was conversant. He answered: Ni kweli (it is true). When the facts were read to him, he also answered in the affirmative. I thus find that his plea of guilt was unequivocal.

8. I have reached the conclusion that the appellant was properly convicted of the offence. In any event, the appellant no longer challenges his conviction.

9. I will now turn to the appeal on sentence. Section 354 (3) of Criminal Procedure Code empowers the High Court to “maintain the sentence, or with or without altering the finding reduce or increase the sentence”.

10. In Macharia v Republic [2003] 2 E.A 559 the Court of Appeal had this to say on sentencing-

“The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by a trial judge, unless it was evident that the judge acted upon some wrong principles or overlooked some material factors.”

11. The learned trial Magistrate found that the appellant was a serial offender.The appellant said in mitigation that he was ailing and had two children. He called for a probation report. The report was unfavourable. It set out in detail the previous convictions. The offence attracted a sentence of up to ten years imprisonment.

12. I cannot then say that the learned trial magistrate failed to look at the facts and circumstances of the case in their entirety before settling for the sentence.

13. The appeal is devoid of merit. It is dismissed.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 3rd day of July 2018.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

The appellant (in person)

Mr. Mutinda for the Republic.

Mr. Kiberenge and Ms. Dorcas, Court Clerks.