[2016] KEHC 6935 (KLR)
The court found that the plea of guilty was unequivocal as the appellants had sufficient opportunity to change their plea and were aware of the consequences. However, considering that both appellants were first offenders, the small quantity and value of the drugs, and their guilty plea, the sentences of six and ten...
Source-derived case information.
- Citation
- [2016] KEHC 6935 (KLR)
- Parties
- Appellant: Elizabeth Auma Rugumo; Appellant: Brian Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 9 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on conviction dismissed; appeal on sentence allowed.
- Legal Topics
- Narcotic Drugs Possession, Plea of Guilty, Sentencing Principles, First Offender Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Auma Rugumo
Appellant
Brian Ochieng
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty entered by the appellants was unequivocal and properly taken.
- 2 Whether the sentences imposed on the appellants were excessive given the circumstances and their status as first offenders.
Ratio Decidendi
The court found that the plea of guilty was unequivocal as the appellants had sufficient opportunity to change their plea and were aware of the consequences. However, considering that both appellants were first offenders, the small quantity and value of the drugs, and their guilty plea, the sentences of six and ten years were deemed excessive. The court set aside the original sentences and substituted them with the period already served, ordering the release of the appellants unless otherwise lawfully held.
Court Disposition
Appeal on conviction dismissed; appeal on sentence allowed.
Orders
- The sentences of six years and ten years imprisonment for the first and second appellant respectively are set aside and replaced with the period already served.
- Each appellant shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL APPEAL NO. 9 OF 2014
(Appeal originating from the conviction and sentence by Hon. Y. A. Shikanda-SRM in Malindi CR. NO.78 of 2014)
1. ELIZABETH AUMA RUGUMO
2. BRIAN OCHIENG...................................................APPELLANTS
=VERSUS=
REPUBLIC.......................................................................PROSECUTOR
J U D G M E N T
The Appellants were charged with the offence of being in possession of Narcotic Drugs contrary to section 3(1) (2) (a) of the Narcotic drugs and psychotropic substance Act Number 4 of 1994. The particulars of the offence for the first appellant Elizabeth Auma Ragumo. Are that on 10th February 2014 at Pentagon area in Malindi town, she was found with four rolls of canabis sativa with street value of Kshs.800/-. Fr the 2nd Appellant, Brian Ochieng, the particulars were that on the same day 10th February 2014 he was found with five sachets (0. 05 grammes) of heroin with street value of Kshs.500.
Both appellants pleaded guilty to the offence. The first appellant was sentenced to serve six (6) years while the 2nd appellant was sentenced to serve ten (10) years imprisonment. The grounds of appeal are similar. The appellants contend that they were not accorded adequate time before taking their plea, that they were not informed of the consequences of pleading guilty and that they are first offenders. The first appellant pleaded for lenience and informed the court that it was her first time to commit an offence. Similarly, the 2nd appellant pleaded for leniency. Mr. Nyongesa, prosecuting counsel submitted that the plea was properly taken and the sentence is not excessive. The pre-sentencing reports were not favourable to the appellants. The appellants were found not to be fit for non-custodial sentence.
The record before the trial court show that the appellants pleaded guilty to the charges. When the facts were read over, the 1st accused explained that the drugs were not hers and the court re-took her plea. The court took it that the 1st appellant was denying the charge while the 2nd appellant maintained that he was pleading guilty. This was on 11th February 2014. On 18th February 2014 the 1st appellant changed her plea and the charges were read over again to both appellants. The appellants pleaded guilty to both the charges as well as the facts.
Given the record of the trial court; I do find that the plea was equivocal. The appellants had all the time to change their plea. The appellants are aware that once one admit, committing an offence then what follows is the sentence.
With regard to the sentence, the appellants have served almost two years in prison. The combined street value of the drugs is Kshs.1,300. It is true even if the quantity of the drugs was small, it could still lead to disastrous effects. However, since the appellants pleaded guilty, I do find that the punishment should have been less severe. I do find the sentence of six (6) years and ten(10) years imprisonment for the first and second appellant to be excessive. The sentences are hereby set aside and replaced with the period already serve.
In the end, the appeals on conviction fails. The sentence is set aside and replaced with the period already served. Each appellant shall be set at liberty unless otherwise lawfully held.
Dated and delivered in Malindi this15TH day of FEBRUARY 2016
S.CHITEMBWE
JUDGE