Muktar Muhina v Republic [2013] KEHC 1663 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 102 OF 2012

MUKTAR MUHINA …......................................................   APPELLANT

VERSUS

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

(Appeal arising from the decision of Hon. H. O. Barasa, SRM in Lodwar Principal Magistrate's Court in Criminal Case No. 472 of 2012)

J U D G M E N T

The appellant was charged for the offence of being in possession of Cannabis Sativa (bhang) contrary to Section 3(1) as read with Section 3(2) of the Narcotic and Psychotropic Substances Control Act No. 9 of 2010.  The particulars of the offence were that on the 1st day of July 2012 at Kakuma Refugee Camp in Turkana West District within Turkana County, was found in possession of Cannabis Sativa (bhang) to wit 10 gms with a street value of Kshs. 50/- which was not in form of medical preparation.

The appellant pleaded guilty and was thereafter convicted and sentenced to serve 10 years in prison.  He appealed against sentence.  In his ground of appeal, he stated that he was a foreigner and that he did not know that the offence was such serious.

As a first appellate Court, I should not interfere with a sentence by the lower Court unless it is shown that the sentence was either illegal or was manifestly low or excessive.  Before I proceed to address the issue of sentence, I must point out that the charge as framed cited a wrong statute.  Act No. 9 of 2010 has nothing to do with cannabis sativa.  The citation of this wrong statute must have influenced the Trial Magistrate because in sentencing the appellant, he stated thus:-

“I have duly considered the nature of the charge and the penalties provided for under the Narcotic Drugs and Psychotropic Substances (Control)Act (Rev. 2010).  I hereby sentence the accused to serve ten (10) years in prison”.

The Narcotic Drugs and Psychotropic Substances (Control) Act of 1994 was not revised in the year 2010.  This notwithstanding, the citation of the wrong statute in the charge sheet did not prejudice the appellant as he understood the charge he was facing.  In any case, this was not a ground of appeal by the appellant.

I now turn to the issue of sentence.  The principles of sentencing have been fairly stated in a number of decisions of the High Court and Court of Appeal.  The appellant herein pleaded guilty to the charge.  The Prosecution stated that he was a first offender.  The appellant in mitigation pleaded for lenience saying he will never repeat the offence.  The amount of cannabis was 10gms with a street value of Kshs. 50.

The Trial Magistrate should have taken all the above into account in sentencing the appellant.  I find that the sentence in this case was manifestly excessive.  The Trial Magistrate gave a maximum sentence to a first offender.  This should not have happened.  I must interfere with the sentence.  I hereby reduce the same to the period already served which is slightly over one year.  This will ensure the immediate release of the appellant from prison.

Dated, signed and delivered at Kitale on this 22nd day of October, 2013.

E. OBAGA

JUDGE

In the presence of M/S Limo for State and appellant.

Court Clerk: Kasachoon.

E. OBAGA

JUDGE

22/10/2013