[2021] KEHC 5630 (KLR)
The court found that the applicant's plea was not unequivocal and that there was no evidence presented to prove that the substance in question was Cannabis Sativa (bhang). The absence of a clear conviction and the lack of evidence regarding the nature of the exhibit constituted serious and material irregularities in...
Source-derived case information.
- Citation
- [2021] KEHC 5630 (KLR)
- Parties
- Applicant: Charles Owino Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E050 of 2021
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- proceedings quashed and applicant set at liberty
- Judges
- RE Aburili
- Legal Topics
- Narcotic Drugs Possession, Plea Procedure, Sentencing Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Owino Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant's plea was unequivocal and valid.
- 2 Whether there was sufficient evidence to support the conviction for possession of narcotic drugs.
- 3 Whether the proceedings and sentence were materially irregular and should be quashed.
Ratio Decidendi
The court found that the applicant's plea was not unequivocal and that there was no evidence presented to prove that the substance in question was Cannabis Sativa (bhang). The absence of a clear conviction and the lack of evidence regarding the nature of the exhibit constituted serious and material irregularities in the proceedings. As a result, the court quashed the proceedings and set aside the sentence imposed on the applicant, ordering his immediate release unless otherwise lawfully held.
Court Disposition
proceedings quashed and applicant set at liberty
Orders
- The proceedings of 1.3.2021 in Ukwala PMCCRC 125 of 2021 are quashed.
- The sentence imposed on the applicant is set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION E050 OF 2021
CHARLES OWINO ODHIAMBO....................APPLICANT
VERSUS
REPUBLIC.....................................................RESPONDENT
(Being an Application for Revision of sentence in Ukwala PMCCRC
125 of 2021 on 1. 3.2021 by Hon. C.I. Agutu - Senior Resident Magistrate)
RULING
1. The applicant is Charles Owino Odhiambo aged 42 years old. He was charged with the offence of being in possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) (a) of the Narcotic drugs and Psychopic(sic) Substances control Act No. 4 of 1994. He is recorded as having pleaded guilty to the charge and facts upon which he mitigated and was sentenced to a five of KShs.150,000/= in default to serve two years imprisonment. The 11 brooms of bhang were to be destroyed.
2. From the above record of proceedings, it is clear that the plea was unequivocal as there is no Conviction of the applicant. There is also no evidence that the 11 brooms produced as exhibit 1 were Cannabis Sativa (bhang).
3. In view of the serious irregularities in the proceedings which irregularities are material and fatal, I hereby quash the proceedings of 1. 3.2021 conducted by Hon. C.I. Agutu, Senior Resident Magistrate, Ukwala and set aside the sentence imposed on the applicant who has already served nearly 4 months of the 2 years imprisonment.
4. Unless otherwise lawfully held, the applicant Charles Owino Odhiambo is hereby set at liberty forthwith.
5. File closed.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 24TH DAY OF JUNE, 2021
R.E. ABURILI
JUDGE