[2013] KEHC 3112 (KLR)
The court found that the facts presented did not support a conviction for trafficking by way of storing, as the accused persons were found consuming the drugs, not storing them for the purpose of trafficking. The logic of charging individuals with trafficking the same drugs they were actively consuming was rejected....
Source-derived case information.
- Citation
- [2013] KEHC 3112 (KLR)
- Parties
- Appellant: Abubakar Salim Nzala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 313 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partly allowed; convictions for trafficking quashed; sentences on other counts reduced.
- Judges
- GO Shikwe
- Legal Topics
- Drug Offences, Plea of Guilty, Sentencing Principles, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abubakar Salim Nzala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for trafficking was safe where the accused were found consuming, not storing, narcotic drugs.
- 2 Whether the sentences imposed on counts 3, 4, 5, and 6 were harsh and excessive.
Ratio Decidendi
The court found that the facts presented did not support a conviction for trafficking by way of storing, as the accused persons were found consuming the drugs, not storing them for the purpose of trafficking. The logic of charging individuals with trafficking the same drugs they were actively consuming was rejected. The court held that the conviction on the trafficking counts was unsafe and could not stand. Regarding the remaining counts to which the appellant pleaded guilty, the court found the sentences imposed to be harsh and excessive and accordingly reduced them to fines with an alternative of imprisonment. The appeal thus succeeded to the extent of quashing the trafficking...
Court Disposition
Appeal partly allowed; convictions for trafficking quashed; sentences on other counts reduced.
Orders
- Convictions on counts 1 and 2 for trafficking quashed and sentences set aside.
- Sentences on counts 3, 4, 5, and 6 reduced to a fine of Kshs. 50,000 each or one year imprisonment in default, to run consecutively.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 313 of 2010 [if gte mso 9]><xml>
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(From Original Conviction and Sentence in Criminal Case No. 1967 of 2010 of the Chief Magistrate’s Court at Mombasa – L. Mutende (SPM))
ABUBAKAR SALIM NZALA ……………….………….…. APPELLANT
- Versus -
REPUBLIC …………………………………………….… RESPONDENT
JUDGMENT
The Appellant Abubakar Salim Nzala pleaded guilty to the charges on the day of plea on the six counts.
The facts given by the prosecutor are reproduced herebelow thus-
“On the 3rd June 2010 at Bamburi Estate in Likoni at 5. 00pm Police Officers from Likoni Police Station acting on information received that the Accused persons were in a certain house smoking cannabis sativa and sniffing heroin in a house owned by the 1st Accused. They moved to the said house. On arrival they found eight young men there. They are all before the Court. They were seated. They surrounded the house and informed the Accused’s their intention to search. A search was conducted in the house. Ten rolls of dry green plant material and small quantity of brownish powder they suspected to be heroin was recovered. On the table in the house police officers recovered a brown piece of windscreen (broken) and ashes on the table, which made the police establish that the Accused persons were smoking the suspected cannabis and heroin. They were all arrested and taken to police station. The police took possession of the exhibits. They took them to the Government Analyst. The report from the government analyst confirmed the dry plant material was cannabis sativa and the brown powder was heroin. The satchet of heroin was found to be 20 grammes. The satchet of heroin, the ten rolls, the report were produced as exhibits.”
On the 1st and 2nd Count the Appellant is charged with trafficking by way of storing a satchet of heroin with a street value of Kshs. 200/- and ten rolls of cannabis sativa of the street value of Kshs. 2,000/-.
There were eight men found in a house smoking, inhaling and sniffing narcotic drugs as per the facts given. They cannot at the same time be deemed as storing the same stuff as they were consuming it. There is no logic in charging them with trafficking the same stuff they were consuming. Storing also presupposes large quantities.
The Accused persons were found with a satchet of heroin and some ten rolls of cannabis sativa on the Appellant and 20 rolls on the 8 Accused persons. It is ridiculous to claim that they were trafficking on them. The two counts of trafficking were not proved beyond reasonable doubt and the conviction is found unsafe.
It is hereby quashed and the sentence set aside. The Appellant had pleaded guilty on Counts 3, 4, 5 and 6. The sentences were harsh and excessive they are reduced to a fine of Kshs. 50,000/- in default one year imprisonment on Count No. 3. Kshs. 50,000/- fine or one year imprisonment on Count No. 4. Kshs. 50,000/- fine in default one year imprisonment on Count No. 5. Kshs. 50,000/- in default one year imprisonment in respect of Count No. 6.
Sentences to run consecutively. To that extent only does the appeal succeed.
Judgment read and delivered in open Court this 31st day of May, 2013.
M. MUYA
JUDGE
In the presence of:-
Mr. Ayodo for the State
Appellant - present
Court clerk – Mr. Musundi
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