Mchana v Republic [2023] KEHC 25701 (KLR)

Mchana v Republic (Criminal Appeal E037 of 2022) [2023] KEHC 25701 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25701 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E037 of 2022

GMA Dulu, J

November 21, 2023

Between

Daniel Charles Mchana alias Hassan Abdalla

Appellant

and

Republic

Respondent

(From the conviction and sentence in Criminal Case No. E357 of 2022 at Voi Law Courts delivered on 6th June 2020 by Hon. C. K. Kithinji (PM))

Judgment

1. The appellant was convicted on his own plea on two counts.

2. Under count I he was convicted of trafficking narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 – the particulars of which being that on 2nd June 2022 at around 1445hours in Sofia area Voi Sub County within Taita Taveta County, was found trafficking narcotic drugs (bhang) by selling the said drugs to wit 13 rolls of street value Kshs. 4,550/= thereby contravening the said Act.

3. Under count II he was convicted of entering Kenya without a permit contrary to Section 34(1) as read with Section 53(i) (j) and 53(2) of the Kenya Citizenship and Immigration Act No. 12 of 2011, the particulars of which being that on 2nd June 2022 at Sofia area in Voi Sub County within Taita Taveta County, being a Tanzanian citizen was found unlawfully present in Kenya without a passport or permit.

4. He was imprisoned to 20 years for trafficking narcotic drugs and a fined Kshs. 20,000/= in default six (6) months imprisonment for being illegally present in Kenya, sentences to run consecutively, and also to be repatriated.

5. He has now appealed to this court against both conviction and sentence.

6. With regard to conviction I have perused the trial court record. In my view the court complied with the requirements for taking a plea of guilty as stated in the case of Adan =Vs= Republic (1973) EA 445. I thus dismiss the appeal against conviction as the charges were read to the appellant, he admitted the same, facts were summarised and he also agreed to the facts

7. With regard to sentence, in my view a quantity of bhang worth Kshs. 4,550/= is a small quantity and should not attract a sentence of 20 years imprisonment. In addition, the appellant stated in mitigation that he will not repeat the offence but the court erroneously stated that “accused is not remorseful”.

8. I will thus vary the sentence for trafficking and reduce it to eight (8) years imprisonment. The sentence for being illegally present in Kenya and the repatriation orders are lawful and I will retain the same.

9. Consequently, I dismiss the appeal against conviction and uphold the same.

10. As for the sentence, I set aside the sentence of 20 years imprisonment for trafficking narcotics and instead order that the appellant will serve eight (8) years imprisonment from the day he was sentenced by the trial court. The sentences for being illegally present in Kenya and repatriation orders are upheld.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER 2023 AT VOI.GEORGE DULUJUDGEIn the presence of:-Court Assistant – Alfred/TrizahMr. Sirima for StateAppellant