[2017] KEHC 2531 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL APPEAL NO. 10 OF 2017

AGNES SEBASTIAN................................APPELLANT

Versus

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

(From original conviction and sentence of the Senior Resident Magistrate’s Court at Loitokitok in Criminal Case No. 287 of 2016 – Hon. M.O. Okuche (SRM)

JUDGEMENT

1. The appellant, Agnes Sebastian was charged before the Senior Resident Magistrate Court at Loitokitok with the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotrophic Substances Control Act No. 4 of 1994. She pleaded guilty to the charge whose particulars were that on 20/11/2016 at Umbirikani Police Barrier. She trafficked in narcotic drugs by conveying 6kgs of bhang with a street value of Ksh.10,000 in motor vehicle registration KBR 472A. The appellant on conviction was sentenced to serve six years imprisonment.

3. Being dissatisfied with conviction and sentence the appellant lodged an appeal based on the following grounds:

(1) The learned trial magistrate erred in law in failing to strictly adhere to the procedure set out under section 207 of the Criminal Procedure Code in recording a plea of guilty and convicted the appellant on an equivocal plea of guilty.

(2) The learned trial magistrate erred in law in convicting and sentencing the appellant in the absence of a certificate of analysis from a government chemist contrary to section 74A and 67 of the Narcotic Drugs and Psychotrophic Substances Control Act No. 4 of 1994.

(3) The learned trial magistrate erred in law for convicting and sentencing the appellant in absence of a valuation report of the alleged narcotic drugs control to section 86 of the Narcotic Drugs and Psychotrophic Substances Control Act No. 4 of 1994.

(4) The learned trial magistrate misdirected himself in law by failing to appreciate that the appellant had no past criminal record and as such ought to be treated as a first offender and proceeded to award her a custodial sentence with no option as to fine even after the appellant had pleaded being remorseful in her mitigation.

(5) The sentence of six years imprisonment imposed by the learned trial magistrate against the appellant is unlawful, harsh, oppressive, arbitrary and excessive in the circumstances of the case.

3. Mr. Nyarango learned counsel for the appellant submitted that pursuant to section 207 of the Criminal Procedure Code the plea of guilty entered against the appellant was not unequivocal. Learned counsel relied on the principles in the case of Adan v Republic [1973] EA 445. Learned counsel further submitted that there was variance as to the date of commission of the offence in the charge sheet being 20/11/2016 to the one provided in the facts of the case in court as 21/11/2016. Mr. Nyarango further argued and contended a verdict of guilty and subsequent conviction where there was no amendment to the charge sheet was therefore defective to that extent. Counsel further submitted that ingredients of the charge is based on the act of conveying but a clear analysis shows there was no evidence where the appellant was travelling to with the consignment. In the submissions by counsel the particulars of the offence in respect of conveying was not clear therefore rendering it prejudicial to the appellant. According to counsel contention the police allegedly stopped motor vehicle registration number KBR 472A at Imbirikani road block, conducted a search and arrested the appellant. What is not clear in counsel’s submission is how the bhang was recovered from the appellant. There is no evidence on how the luggage was identified to be that of the appellant inside a public service vehicle.

4. In this respect counsel submitted that the offence of trafficking by conveying was not proved from the facts presented by the prosecution. Counsel placed reliance in the case of Edward Kazungu Nagego v Republic Cr. Appeal No. 316 of 1992, Chuba Abdalla Mbwana v Republic [2011] eKLR.

5. Mr. Nyarango’s other ground in this appeal was on the language of interpretation at the plea-taking stage by the learned trial magistrate. Counsel argued and submitted that the court record indicates Swahili as the language presumably understood by the appellant. The question paused by counsel in his submissions is how the appellant could answer the charge in English when its clearly shown to have confirmed to communicate in Swahili language. Counsel contended that the appellant did not understand what she was pleading to before the trial court.

6. In buttressing his submissions on this issue counsel invited the court to peruse the record which indicates the appellant to have replied to the charge in the following words: “it is true.”Mr. Nyarango further submitted that the learned trial magistrate erred in convicting the appellant without calling for a certificate of analysis from the government chemist contrary to section 74A and 67 of the Narcotic Drugs and Psychotrophic Substances Control Act (Supra). This in essence in counsel contention created a doubt whether the drugs seized from the appellant were indeed bhang as particularized in the charge sheet. Counsel submitted that the absence of the government analyst report was fatal to the prosecution case.

7. Finally, Mr. Nyarango submitted that the learned magistrate erred in law in sentencing the appellant without complying with section 86 of the Narcotic Drugs and Psychotrophic Substances Control Act (Supra) which provides for the valuation of the alleged drugs or narcotic before passing sentence. This omission on the part of the learned trial magistrate counsel submitted led to an erroneous order on sentence against the appellant.

8. In support of the legal proposition on certificate of analysis and valuation report counsel cited the cases of Stesia Anyango Odongo v Republic [2004] eKLR, Henry O. Edwin v Republic [2015] eKLR. Counsel therefore urged this court to allow the appeal on both conviction and sentence.

9. In response to submissions by learned counsel for the appellant Mr. Alex Akula for the state opposed the line of arguments advanced in this appeal. Mr. Akula submitted that there was no defect in the manner the plea was read and admitted by the appellant to render it equivocal. Mr. Akula invited the court to go by the trial court record which sets out clearly the steps taken in plea taking before convicting the appellant. Mr. Akula further submitted that the absence of the certificate of analysis and valuation did not render the charge defective as submitted by the learned counsel for the appellant. Mr. Akula, contended that the appellant plea to the charge was unequivocal which rendered both conviction and sentence legal and this court has no material to interfere with the decision by the trial magistrate.

10. I have considered the submissions by both counsels and the petition lodged by the appellant why she was dissatisfied with the decision of the trial court. As a first appellate court the law upon the matter is plain. The task of this court is well illustrated in the case of Pandya v Republic [1957] EA 335. In this case the court held inter alia that, “the first appellate court has a duty to rehear the case and reconsider the materials before the judge or magistrate with such other materials as it may have decided to admit.” The court went on further to state that, “the appellate court must then make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it.”

11. It is against this background I will examine the trial court record and the grounds raised by the appellant challenging the conviction and sentence. On my part i would restate the following broad issues as the core to determining this appeal:

(1) Whether the plea of guilty upon which the appellant was convicted can be held as being unequivocal?

(2) Whether in sentencing the appellant the learned trial magistrate erred in law and fact?

(3) Based on the findings in issue No. 1 and 2, what is the appropriate remedy a now trial or acquittal?

12. As regards the first issue the Court of Appeal discussed the principles to consider when assessing whether the plea of guilty is unequivocal or not in the case of Adan v Republic [1973] EA 45where it held as follows:

“The person pleading guilty fully understands the offence with which he is charged. The court taking the plea of guilty must in its record show that the substance of the charge and every element or ingredient constituting the offence has been explained to him in a language that he understands and that, with that understanding and out of his own free will, the pleader admits the charge. This requirement applies not only to offences punishable by death but to al offences. The accused should be required to admit or deny every element of the charge unequivocally. The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts to add any relevant facts. If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and a change of plea entered. If there is no change of plea, a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”

(See also learned author Patrick Kiage JA in his scholarly word “Essentials of Criminal Procedure in Kenya Reprint 2012 Law Africa at pg 91).

13. The general power of the court on appeal or revision is provided for under section 382 of the Criminal Procedure Code as follows:

“Subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission, irregularity in the complaint, summons, warrant, charge, proclamation, order, judgement or other proceedings before or during the trial or in any inquiry or other proceedings under this code unless the error, omission or irregularity has occasioned a failure of justice.”

14. In the case of Ndede v Republic [1991] KLR 567 the court observed that, “despite section 382 of the CPC the court has inherent powers to entertain appeals against plea of guilty. The prosecution in a criminal case bears the onus of showing that the charge against an accused person has been proved beyond reasonable doubt.”

15. In the present appeal Mr. Nyarango’s contention was that the plea was equivocal as it relates to the elements of the offence. First the facts at the trial did not raise the adequacy or correctness of the charge. Secondly the prosecution did not prove that the narcotic or substance was cannabis sativa in absence of the government analyst report as provided for under section 74A. Thirdly the required elements of conveying and the knowledge that the substance was something she was not allowed to traffic.

16. As a general principle the law in the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs Act (Supra) requires that the package seized from an accused as it was the case here be subjected to a designated analyst. All that the law provides under section 74A (D) “is for the analyst, if any appointed by the accused person (in this section referred to as the other analyst with the whole amount seized and thereafter the designated analyst weigh the whole amount seized and thereafter the designated analyst shall take and weigh one or more samples of such narcotic drugs or psychotrophic substance and take away such samples or samples for the purpose of analysing and indentifying the same.

(2) After analysis and identification of the sample or samples taken under subsection (1) the same shall be returned to the authorized officers together with the designated certificates for production at the trial of the accused person.

(3) The production in court by either one of the authorized officers at the trial of an accused person of the sample or samples together with the designated analyst certificate and the magistrates certificate of destruction shall be conclusive proof as the nature and quantity of the narcotic drug or psychotrophic substance concerned and the fact of its destruction in accordance with the provisions of this section.”

17. What these provisions emphasise is for the prosecution to establish that the drug seized is indeed that bhang (cannabis sativa) out-hawed by law. The mere fact that a drug looks like bhang does not mean necessarily that it is the prescribed narcotic drug. The perusal of the record in thiscase indicates that the appellant was arrested at Imbirikani police barrier while travelling in motor vehicle registration KBR 472A. The evidence at the trial court was to the effect that she was found conveying 6kgs of bhang valued at Ksh.10,000. The 6kgs were produced in court by the prosecution counsel as exhibit in support of the charge. There is no evidence that the investigating officer subjected the alleged narcotic drug to be examined by the designated analyst. The role of the designated analyst is to ascertain that the seized narcotic drug by the police officers was indeed bhang.

18. I am cognizance of the fact that the law allows police officers to step up sting operations in respect of drug peddlers and traffickers. The same law expects of them to have the suspected narcotic be analysed at the appropriate designated laboratory to confirm that it falls within that outlawed by the narcotic, psychotrophic and substances Control Act No. 4 of 1994. In my view the trial magistrate should have directed that the samples of the alleged seized bhang be analysed and a certificate to that effect to positively identify its nature be produced in court. The circumstances in which the prosecutor and the trial magistrate figured out that it must be bhang is not clear from the proceedings. When this court applied the provisions of section 74A of the Act none of the procedures were complied with by the prosecution nor the trial magistrate. The facts presented before court by the prosecution did not establish that the narcotic before court was cannabis sativa. It is worth observing that during the plea taking none of these issues arose and the reasons for non-compliance. It is evident from the record the nature of the substance contained in the seized package in possession of the appellant was neither cannabis sativa or some other drug or narcotic.

19. Accordingly, it is not plausible to conclude from the evidence that the alleged narcotic controlled substance weighed six kilograms when there was no compliance with section 74A and also section 86 which provides for valuation of the goods. From a review of the record it is apparent that the source of the weight of 2 kilograms in the charge sheet was not determined by the trial court with due respect to the trial magistrate. The provisions of section 74A of the Narcotic Drugs Act should be considered in all cases of this nature more specifically the issue as to the analyst certificate to identify the nature of the drug or substance.

20. I also felt that in all cases concerning sentence its appropriate to comply with section 86 of the Act on valuation in order to determine the appropriate punishment that should be meted out under section 4(a) of the Act. The court cannot overlook the gravity of the offence committed and render a verdict that is inconsistent with the law.

21. In this context and my reading of section 380 and 382 of the CPC i find that the error and misdirection by the trial magistrate in his verdict of convicting the appellant occasioned a failure of justice. The factual foundation upon which the appellant was found guilty of the charge and subsequently convicted did not meet the threshold of a case proven against the appellant by the prosecution. Protecting the innocent persons indicted in our courts is the primary value of any functionalcriminal justice system in which the rule of law is one of the key pillars of governance. The right to a fair trial enshrined under Article 50 (1) of the Constitution 2010 in my view cannot be interpreted to require that the mode of proving any particular fact conclusively or every element of the offence is through oral evidence which the accused must be allowed to challenge in cross-examination. 22. This duty by the trial courts was well illustrated in the persuasive case of SIP Heng Wong NG & NG Ping Man v Queen [1987] 1WLR 1356the Privy Counsel inter alia thus:

“Those charged with returning a verdict in a criminal case have the duty case upon them to assess and determine the reliability and velacity of the witnesses who give oral evidence or in the case of admission of the charge the evidence/facts that support the elements of the offenceemphasis mineand it is upon this assessment that their verdict will intimately depend if they have not had the opportunity to carry out this vital part of their function as judges/magistrates of the facts, they are disqualified from returning a verdict, and any verdict they purpose to return must be quashed.”

23. It is trite law that in reading the charge to the accused person and a plea of guilty is entered, the facts stated by the prosecutor and admitted by the accused must be able to prove the elements of the offence. The trial magistrate before exercising discretion to convict has to confirm that the evidence adduced as contained in the facts establishes the guilty of an accused person. From the record and facts in support of the charge which the appellant seemed to have admitted as being correct to me they are at variance with the ingredients of the charge.

24. In this indictment the trial magistrate erred in accepting those facts and concluding that the appellant’s plea was unequivocal as set out in Adan v Republic Case (Supra). It was for the trial court to examine facts of this case upon which the prosecution relied upon against the appellant to ensure the offence was proven beyond reasonable doubt.

25. Accordingly, in this appeal that onus was not discharged to warrant this court affirm the trial magistrate order on guilty and conviction. I therefore find the appeal has merit. The order on conviction and sentence is hereby set aside. The appellant is at liberty unless otherwise lawfully held.

Dated, delivered and signed in open court at Kajiado on 4th day of September, 2017.

…………….......

R. NYAKUNDI

JUDGE

Representation:

Mr. Nyarango for the appellant present

Ms. Thyaka holding brief for Mr. Akula for Director of Public Prosecutions present

Mr. Mateli Court Assistant

Appellant present