Henryh Wafula v Republic [2013] KEHC 1759 (KLR)

REPUBLIC OF  KENYA

IN HTE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 111 OF 2011

HENRYH WAFULA  …...........................................................      APPELLANT

=VERSUS

REPUBLIC  ….........................................................................       RESPONDENT

JUDGMENT

The appellant, HENRY WAFULA, was convicted  for the offence of Unlawful Cultivation of Narcotic Drugs contrary to section 6 (a) of the Narcotic Drugs and Psychotropic Substances Act.

The facts were that the police recovered 14 bhang plants which the appellant had planted in his compound.  After  uprooting the plants,  the police escorted the appellant to the police station.

The  appellant confirmed that those facts were accurate.  He was therefore convicted on his own plea of “Guilty”.

During mitigation, the appellant told the learned trial magistrate that he used to smoke the bhang, because  it enabled him to work better.

Thereafter, the  trial  court sentenced the appellant to a fine of Kshs 250,000/=, on   in default 10 years imprisonment.

When  the appeal came up for hearing, the appellant was represented by Mr.  Kigamwa Advocate, whilst the Respondent was represented by Mr. Mutuku, learned Deputy Director at the Office  of the Director of  Public Prosecution.

The  Respondent  conceded this appeal on the grounds that there was no analysis of the plants which were uprooted from the appellant's  compound.

Secondly, the exhibit which was brought before the trial court  was not  the 16 plants which had been uprooted from the appellant's  compound.

I have perused the record of proceedings from the trial court, and  ascertained the accuracy  of what the Respondent told this court.

Pursuant to the provisions of Section 74 (a) of the  Narcotic Drugs and Psychotropic Substances Act, the plants  which  were recovered should  have been analyzed, to verify that they were bhang.

After conducting the necessary analysis, the Government Chemist, or  whichever other person had conducted the analysis, should have made available to the trial court, a certificate verifying the nature of the samples that he had analyzed.

The certificates would also indicate the quantity of the substance which had been recovered from the accused person.

The nature of the exhibit will enable the trial court ascertain that the accused  was or was not handling, conveying  or in possession of the drugs or substances cited in the charge sheet.

Meanwhile, the weight or quantity of the  substance  in issue would enable the court determine the appropriate sentence, as  the relevant  law pegs the fine to the quantity in question.

As there was no certificate, the trial court  had no evidence to confirm the nature or quantity of the plants recovered from the compound of the appellant.

Secondly, the absence of the certificate deprived the appellant the opportunity to verify whether or not the substance  and the quantity thereof, which were attributed to him, were actually those that were recovered from him.

In those circumstances, I find and hold that the Respondent  was right to have conceded this appeal.

Accordingly, the conviction is quashed, the sentence set aside, and I order that the appellant be set at liberty forthwith unless he is otherwise  lawfully held.

DATED SIGNED AND DELIVERED AT ELDORET,

THIS  22ND  DAY OF OCTOBER, 2013.

FRED A. OCHIENG

JUDGE.