Evans Gateri Mwangi v Republic [2013] KEHC 417 (KLR)

REPUBLIC OF KENYA

IN THE HIGHCOURT OF  KENYA

AT   NAKURU

HCRA NO 19  Of  2012

EVANS GATERI   MWANGI ……………………..APPELLANT

VERSUS

REPUBLIC ……………………………...……….RESPONDENT

(Being   an  appeal from  original  conviction and  sentence   in Nakuru C.M Criminal case no.160 of  2012 by  Hon  W  Juma  C.M dated  27th  January 2012)

J U D G E M E N T

1. The  appellant  was charged  with  the  offence  of  being  in  possession  of  cannabis  sativa  contrary to section 3(1)  and  (2)  of the  Narcotics  Drugs and  Psychotropic  substances  control  Act  1994( No.4  of 1994).

2. He pleaded guilty to the offence and was convicted. The  appellant admitted to these  facts and in mitigation sought forgiveness saying he will not  repeat the offence.

3. He was sentenced to ten years imprisonment.

4. The  appellant  being  dissatisfied  with the decision  on  sentencing  of  Hon  W  Juma  Chief  Magistrate,  Nakuru preferred  this  appeal and listed the  following  grounds  of  leniency in  his  petition  of  appeal.

GROUNDS OF APPEAL

5(i)  That the appellant is a first offender  and  very remorseful.

(ii)   That   the  appellant  will never  repeat  the  offence  again,  has   learnt  the  hard  way.

(iii)   That  before  arrest he was a  peace loving  and  a law  abiding  citizen and was  influenced by  peer  pressure and  bad  company which  he will cease  from  keeping.

(iv) That before  his  arrest  he was the only bread  winner for  his  siblings  who  became  orphaned  during the  post-election violence  of  2007-2008.

(v)  That the ten years imprisonment  term  be   substituted  with  a non-custodial  sentence  to  enable  him  restitute his  future  as  he  is  still  young  with  potential.

THE LAW

6. The Narcotic Drugs and  Psychotropic  substance

Act, 1994, is drawn in such a manner that apart from

expressly provided  exceptions  where  possession of a

narcotic drug or  Psychotropic  substance  is  permitted

under section (3) of  the  Act,  it is  an  offence  for  any

unauthorized person to possess a narcotic Drug or

Psychotropic substance. The language of the Act admits

only strict  construction  of it.

“Any person who  has in his  possession of  any narcotic Drug or psychotropic substance shall be  guilty of an offence section 3(i).

Section  3(2) ( c) says:

(2) “A person guilty of an offence under subsection (1)  shall  be  liable  -

(a) In respect of cannabis where  the  person satisfies  the court  that the  cannabis  was  intended solely for his own  consumption, to  imprisonment  for   ten  years, and  in, every  other  case to  imprisonment for twenty years….”

ANALYSIS

7. Under   section 348 of the Criminal Procedure Code,

a person  who  pleads guilty  is  convicted  and

sentenced on his own  plea  of guilty, can only appeal on

grounds of  either legality or  extent  of  sentence.  The appellant does  appear to  be  aware  of this because he has pleaded for reduction of his prison term.

8. The appeal is not opposed.

9. Mr Chirchir submitted on behalf of the state that the appellant was found in possession of  two rolls of bhang. The value of the drug was not for commercial but for consumption and the Magistrate should have considered this. The appellant was also remorseful during mitigation and indicated that he was a first offender who would not repeat the offence again. He is a young man who should be given a chance.

10. I have considered the grounds of appeal, state counsels submissions and taken into consideration the quantity of the substance recovered from the appellant as well as the street value.

11. Sentencing is essentially at the discretion of the trial court. An appellant court will be slow to interfere with the exercise of that discretion unless it is shown that the sentencing court took into account an irrelevant factor, it applied a wrong principle or that the sentence is harsh and excessive, that an error in principle must be inferred. see( Charo Ngumbao Gugudu V Republic(2011) eKLR. The court also held that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged.

12. The appellant was a first offender and was found in possession of two rolls of bhang worth Kshs. 20/=. He pleaded guilty before the trial commenced and he therefore did not waste court's time.

FINDINGS

13. In my humble view, the learned Magistrate did not take into account the above relevant facts because had she done so, then she would have meted a more lenient  sentence other than the maximum 10 years imprisonment. I find that the sentence of 10 years was excessive in the circumstances and it was not commensurate to the offence.

CONCLUSION

The appeal against the sentence is hereby allowed.  The sentence of 10 years imprisonment imposed by the trial court is set aside and this court exercises it’s   discretion and sentences the appellant to the term already served.  It is so ordered.

Dated, signed and delivered at Nakuru  this 8th day of   November  2013

L N WAITHAKA

JUDGE

PRESENT

Evans Gateri  Mwangi- Appellant

Mr  Marete  for the state

Emmanuel  Maelo: Court  Clerk

L N WAITHAKA

JUDGE