Samuel Chidiebeder v Republic [2006] KEHC 3141 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Criminal Appeal 397 of 2004

SAMUEL CHIDIEBEDER………..….……….......................................….………….…..APPELLANT

VERSUS

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

J U D G M E N T

The Appellant was convicted for the offence of TRAFFICKING IN NARCOTIC DRUGScontrary to Section 4(a) of Act No. 4 of 1994.  He had pleaded guilty to the offence.  He was then sentenced to 8 years imprisonment and fined Kshs. 1 million in default 1 year’s imprisonment.  He now appeals against the sentence.

The Appellant in his written submissions argued that the sentence was excessive since he was remorseful for the offence and has realized with remorse the seriousness of the repercussions of drugs.  The Appellant submitted further that he had undergone correctional training and rehabilitation programmes while in remand which he said had equipped him with enough knowledge to remain a law abiding citizen.  He said he was an orphan and a poor man.

The appeal was opposed.

MR. MAKURA, learned counsel for the State urged the court to correct the erroneous part of the sentence, where the learned trial magistrate, in disregard to the provisions of Section 4(a),  Act No. 4 of 1994 imposed a fine of 1 million instead of the recommended three times the value of the drug.  MR. MAKURA submitted that there was a certificate adduced by the prosecution showing that the value of the drug recovered from the Appellant was Kshs.450,000/.

I have carefully considered this appeal.  In the case of SAYEKO vs. REPUBLIC [1959] KLR 306, it was held:

“The appellate court will not ordinarily interfere with the discretion exercised by the lower court unless it is evident that the lower court has acted upon some wrong principle or over looked some material factor or the sentence is manifestly excessive in the circumstances of the case.

A plea of guilty from a first offender requires recognition as a matter of principle.”

I am persuaded by this decision.  I have perused the record of the trial court and nowhere did the learned magistrate give recognition of the fact that the Appellant had pleaded guilty to the charge therefore saving court’s time. The learned trial magistrate did not also recognize that the Appellant was a first offender.  The court gave more weight to the seriousness of drug cases generally and the need to pass what the learned trial magistrate terms a “deterrent sentence”.  In so doing I find that the learned trial magistrate overlooked material factors which dictated a less severe sentence than the one imposed.  In those circumstances I find that the sentence of 8 years imprisonment was excessive and manifestly harsh having considered the Appellant pleaded guilty, was a first offender and that the amount of drug involved was not enormous.  I do appreciate however that, however small heroin is, it is undesirable to any society and no one should be treated by the court in such a manner as to serve as an inducement to continue involvement in trafficking the same

I will allow the appeal in part by setting aside the sentence of 8 years imprisonment and a fine of 1 million and in substitution thereof sentence the Appellant to six years imprisonment with a fine of Kshs.1,350,000 and in default 1 year imprisonment, both from the date of sentence in the lower court.

Dated at Nairobi this 22nd day of March 2006.

…………………………

LESIIT, J.

JUDGE

Read, signed and delivered in the presence of;

Appellant - present

Mr. Makura for State

CC:  Huka

…………………………

LESIIT, J.

JUDGE