[2016] KEHC 193 (KLR)
The court found that although the appellant pleaded guilty to the charge of possession of narcotic drugs, the prosecution failed to produce any evidence, such as a report from the Government Chemist, to prove that the plant material found in the appellant's possession was indeed Cannabis Sativa. The absence of such...
Source-derived case information.
- Citation
- [2016] KEHC 193 (KLR)
- Parties
- Appellant: Anthony Maina Karanja; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 168 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Judges
- JV Juma
- Legal Topics
- Narcotic Drugs Possession, Burden of Proof, Plea of Guilty, Evidence Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Maina Karanja
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the substance in possession was Cannabis Sativa.
- 2 Whether a plea of guilty absolves the prosecution from proving all elements of the offence.
- 3 Whether the sentence imposed was lawful in the absence of proof of the substance.
Ratio Decidendi
The court found that although the appellant pleaded guilty to the charge of possession of narcotic drugs, the prosecution failed to produce any evidence, such as a report from the Government Chemist, to prove that the plant material found in the appellant's possession was indeed Cannabis Sativa. The absence of such proof meant that a critical element of the offence was not established beyond reasonable doubt. The court held that a plea of guilty does not relieve the prosecution of its obligation to prove all elements of the offence. Consequently, the conviction was erroneous and could not be sustained. The sentence imposed was therefore set aside, and the appellant was ordered to be...
Court Disposition
conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appellant’s conviction is quashed.
- The sentence of 3½ years imprisonment is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 168 OF 2015
ANTHONY MAINA KARANJA ....................... APPELLANT
VERSUS
REPUBLIC ..............................................................STATE
JUDGEMENT
The appellant ANTHONY MAINA KARANJA has filed this appeal. The appellant informed the court that he did not seek to challenge his Conviction. He only wished to appeal against the sentence imposed by the trial court.
The appellant was arraigned before the lower court on 19/7/2010 facing a charge of POSSESSION OF NARCOTIC DRUGS CONTRARY TO SECTION 3 (1) as read with SECTION 3(2) OF THE NARCOTIC DRUGS AND PSYCHOTROHIC SUBSTANCES CONTROL ACT, 1994.
The particulars of the charge were that:
“On the 29th day of June 2015 at Bisman Trading Centre within Nyandarua County was found in possession of Cannabis Sativa (bhang) to wit 5 grames not under medical preparation”
The appellant entered a plea of Guilty to the charge. The facts were read out and the appellant accepted the facts as true. He was then convicted on his own plea of Guilty and sentenced to serve 3½ years in prison.
As stated earlier the appellant only challenged his sentence terming it as harsh and excessive. He did not wish to challenge his conviction. The learned State Counsel MR. CHIGITIopposed the appeal.
This being a court of first appeal and in the supervisory role of a High Court, I am obliged to satisfy myself that the conviction was indeed proper.
The appellant did plead guilty to the charge as read out to him. Thereafter the prosecutor read out the facts to the appellant. The plant material was produced as an exhibit P exh 1. However no evidence was tendered to prove that the plant material was in fact Cannabis Sativa. No report from the Government Chemist was produced as an exhibit. The onus lies on the prosecution to prove each aspect of the charge beyond reasonable doubt. The fact that the appellant pleaded guilty to the offence does not in any way absolve the prosecution of this burden of proof. Failure to tender proof that the plant material was bhang renders the charge unproven. Therefore in those circumstances the appellant’s conviction was erroneous. I therefore quash the appellant’s conviction and set aside the 3½ years sentence imposed on him. The appellant is to be set at liberty forthwith unless he is otherwise lawfully held.
Dated in Nakuru this 20th day of December, 2016.
Maureen A. Odero
Judge