Kelvin Muriithi Mutuku v Republic [2017] KEHC 425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL CASE NO. 36 OF 2015

KELVIN MURIITHI MUTUKU.......................APPELLANT

VERSUS

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

(Being an Appeal from the judgement of Hon. S.K. MUTAI,

Senior ResidentMagistrate delivered on 6/6/16 in Embu

CourtCriminal Case No. 1468 of 2015. )

JUDGEMENT

The appellant was charged with the offence of being in possession of narcotic drugs contrary to section  3(1) as read with section 3(1) (a) of the narcotics drugs and Psychotropic Substances (Control) Act NO. 4 of 1994. The particulars of the offence are that the appellant on 31st   day of October 2015 at Grogon Slums in Embu town within Embu County was found being in possession of 180 rolls and 600 grams of cannabis with street value of Ksh. 24,200/= which was not in medical preparation in contravention of the said Act.

The appellant pleaded guilty to the charge and was sentenced to pay a fine of Ksh.72, 600/= in default to serve 10 years imprisonment. During the hearing of the appeal the appellant informed the court that he pleaded guilty and urged the court to disregard all the grounds of appeal. His only argument is the 10 years imprisonment which is harsh and excessive. He regrets committing the offence. He is remorseful and he is a first offender. He is an orphan and his grandparents are old and they rely on him. He was misused by drug peddlers. While in prison he has obtained grade three in tailoring. He is also about to finish a course in design and dyeing. He pleads with the court to consider a noncustodial sentence.

Miss. NANDWA, prosecuting counsel, opposed the appeal. Counsel submits that under section 4(a) of the  narcotic drugs and Psychotropic Substances Control Act, anyone found guilty is liable to a fine of Kshs. 1 million or three times of the market value of the substance whichever is greater and in addition to life imprisonment. The sentence imposed by the trial court is light and within the law. The appellant does not deserve a noncustodial sentence. The appellant pleaded guilty and was properly convicted. He told the court that he sold bhang for a period of one year.

The appellant is not contesting his conviction. He pleaded guilty to the charges. His main issue is the sentence. This is in line with section 348 of the criminal procedure code which provides that no appeal shall be allowed in the case of an accused person who pleads guilty except as to the extent or legality of the sentence.

Section 4 (a) of the narcotic drugs and Psychotropic Substances (Control) Act provides for a fine of one million or three times the value of the drugs and in addition, life imprisonment. The operative word under the section is ‘liable’. The sentence provided under section 4 (a) is the maximum and is not a mandatory sentence. Most convicts have been sentenced to life imprisonment for possessing one roll of cannabis. The appellant was found with drugs worth Kshs. 24,200/=. He was convicted on 6/6/2016. He has by now served about 11/2years in prison. He pleaded guilty and saved the court crucial time. He is a first offender. The sentence imposed by the trial courts should be proportionate to the offence committed. Similarly, the amount of fine imposed should be commensurate to the period of prison incarceration should one fail to pay the fine. In this case, the fine is Kshs. 72,600/= and in default 10 years imprisonment. The alternative sentence of 10 years imprisonment is not proportionate to the fine imposed. The prison sentence is excessive. A rich convict can easily pay the fine while a poor one will have to serve the ten years sentence.

Taking all the circumstances of this case and noting that the appellant has undergone some tailoring training while in prison, I do find that the period he has already served in prison is sufficient punishment for the offence he committed. The sentence imposed by the trial court is hereby set aside and replaced with the period already served.

The appeal on conviction is disallowed. The appeal on sentence is allowed. The appellant shall be set free unless otherwise lawfully held.

Dated and signed at Marsabit this……..Day of…….2017.

S. J. CHITEMBWE

JUDGE.

DATED, SIGNED AND DELIVERED AT EMBU THIS 11th DAY OF July, 2017.

F.N. MUCHEMI

JUDGE.