[2009] KEHC 4220 (KLR)
The High Court found that the trial magistrate erred by treating the appellant as a repeat offender based on an alleged escape from custody, which was not charged or proved, and by considering the appellant a dealer without prosecutorial evidence. The prosecution had expressly stated the appellant was a first...
Source-derived case information.
- Citation
- [2009] KEHC 4220 (KLR)
- Parties
- Appellant: Charo Hamisi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 137 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Sentencing Principles, Possession of Narcotic Drugs, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charo Hamisi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentences imposed on the appellant were manifestly excessive in the circumstances.
- 2 Whether the trial magistrate erred by considering factors not urged before him, such as escape from custody and alleged dealing, in sentencing.
Ratio Decidendi
The High Court found that the trial magistrate erred by treating the appellant as a repeat offender based on an alleged escape from custody, which was not charged or proved, and by considering the appellant a dealer without prosecutorial evidence. The prosecution had expressly stated the appellant was a first offender and did not suggest he was a dealer. The court held that the magistrate considered matters not urged before him, resulting in sentences that were harsh and excessive. The High Court therefore set aside the original sentences and substituted them with sentences equivalent to the period already served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The sentences of five years on count one and three years on count two are set aside.
- The appellant is sentenced to imprisonment for the period already served on both counts.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 137 of 2008
CHARO HAMISI……………………………….……......APPELLANT
VERSUS
REPUBLIC…………………………….……..RESPONDENT
JUDGMENT
The appellant, Charo Hamisi, was convicted on his own plea of guilty on two counts of being in possession of (bhang) cannabis sativa contrary to section 3 (1) as read with section 2 (1) (b) of the Psychotropic Substances Control Act. He was sentenced to five years imprisonment on the first count and three years imprisonment on the second count by Mr. W. F. Andayi, Senior Resident Magistrate, Kaloleni.
The particulars of the first count were that the appellant on 19th October 2007 at Kabutuku village, Mariakani Location, in Kaloleni District, within Coast Province was found in possession of narcotic drugs (bhang) to wit 25 rolls in contravention of the said Act and the second count carried the following particulars: that the appellant on 5th May 2008, at Kabutuku village, Mariakani Location in Kaloleni District, within Coast Province, was found in possession of narcotic drugs (bhang) to wit 20 grammes in contravention of the said Act.
In the facts stated by the prosecution, the appellant is said to have initially been found in possession of 25 rolls of bhang and escaped while in the custody of police officers. On the second occasion, the appellant is stated to have been found in possession of 20 grammes of the same substance.
The appellant admitted those facts and was accordingly convicted on his own plea of guilty. The prosecutor informed the court that the appellant was a first offender. In mitigation the appellant stated that he had a family of four children who depended on him. He further stated that he would not repeat the offence.
The Learned Senior Resident Magistrate, after considering the appellant’s mitigation observed that the appellant was a repeat offender as he had escaped from police custody. He further stated that the offence was serious and considered the appellant a dealer rather than a user. Those circumstances according to the Learned Senior Resident Magistrate, called for a severe penalty which he accordingly imposed.
The appellant was dissatisfied with the sentence and has appealed to this court against the same on the main ground that the sentences are manifestly excessive in the circumstances. The appellant reiterates that he is a first offender and is remorseful and further that his family depends on him as their sole breadwinner.
Mr. Onserio, the Learned State Counsel, does not support the sentences. With respect, I concur with the Learned State Counsel. The prosecution informed the Learned Senior Resident Magistrate that the appellant was a first offender. Yet the Learned Senior Resident Magistrate called him a repeat offender because of the escape from police custody when the appellant was initially arrested. With respect, the Learned Senior Resident magistrate should not have made heavy weather of the alleged escape. The prosecution should have preferred the charge of escape from lawful custody if they desired to have the escape considered in imposing a severe sentence. The prosecution was, however, satisfied that the appellant was a first offender. The prosecution did not also suggest to the court that the appellant could have been a dealer and not a mere user. In those circumstances, I have come to the conclusion that the Learned Senior Resident Magistrate considered matters which were not urged before him when he imposed the sentences, complained of. I am in the premises inclined to interfere with the sentences imposed upon the appellant which sentences I find harsh and excessive in the circumstances. The appeal against the sentences accordingly succeeds. The sentences of five years on count one and three years on count two are hereby set aside. I substitute those terms with a sentence of imprisonment for the period already served on both counts. The appellant should be released forthwith unless he is otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 15TH DAY OF JUNE 2009.
F. AZANGALALA
JUDGE
Read in the presence of:-
The Appellant and Mr. Onserio for the Republic.
F. AZANGALALA
JUDGE
15TH JUNE 2009