[2017] KEHC 3300 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL 14 OF 2016

GENALD NJIRU IRERI...............................................APPELLANT

VERSUS

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

JUDGMENT

The Appeal herein arose from the Judgment of Hon. B.M Kimemia dated the 11th day of November, 2015 wherein he convicted the Appellant and sentenced him to serve 4 years imprisonment.

The Appellant was charged with the offence of cultivating prohibited plants contrary to section 6(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The particulars of the charge were that on the 6th day of July, 2015 at Mugui village Mbuinjeru sub location within Embu County was found having cultivated prohibited plant namely Bhang in contravention of the said Act.

The summary of the evidence adduced by the prosecution witnesses is that on the 6/7/2015 at 5 pm, PW1 and PW2 were on patrol at Mufu village within Kanjeru sub location when they spotted suspicious plants in a shamba and on going closer, they realized that the plant was bhang.

They asked the owner of the shamba why he had cultivated the plant and he said he uses it as a vegetable. They uprooted the plants, arrested the Appellant and escorted him to Runjenges police station and he was charged with the offence herein. The accused admitted being the owner of the farm and to having planted the plants.

PW2 prepared an exhibit memo dated the 6/7/2015, forwarded a sample to the government analyst and the results confirmed that the plant material was indeed cannabis sativa. He produced the said report as an exhibit before the court.

DW1, the Appellant, in his defence stated that on 6/7/2015 police officers went to his farm and found him planting crops. They did not talk to him but started uprooting the plants that were in the samba after which they arrested him and escorted him to the police station. He admitted that the plants were in his shamba and vowed not to plant them again.

The Appellant has listed seven (7) grounds of Appeal which can be collapsed into the following grounds. That the evidence by the prosecution witnesses lacked merits, that the Appellant’s constitutional rights were violated in that he was incarcerated in police custody beyond the stipulated period and that the sentence Imposed is harsh and excessive.

In his submissions, the Appellant submitted that the prosecution did not prove the case beyond any reasonable doubt as required by the law. He averred that no member of the public was called as a witness and that no photos of the alleged plants were taken.

He further submitted that there was a grudge between him and his neighbor one Alex Njiru who wanted to buy his shamba but the Appellant refused to sell it to him. He also contended that the sentence meted out is harsh and excessive. That PW1 and PW2 contradicted each other as to the name of the village where the plants were being grown and in his view, the Magistrate erred in relying on such evidence which was contradicting.

On the part of the Respondent, it was submitted that the evidence of the prosecution was corroborated and there are no inconsistences as alleged by the Appellant. It was further submitted that the Appellant admitted that he used to grow the said plants as vegetables and that the evidence of PW1 and PW2 is clear that they uprooted the plants from the Appellant’s farm and scientific analysis showed that it was established to be prohibited plants.

On sentence, the court was told that the same is not excessive as it is within the law and that the Appellant is not a first offender. On the different names given by PW1 and PW2, it was submitted that was just a slight error and the same did not occasion any injustice to the Appellant.

The court has considered the material before it. I will consider the grounds of Appeal together as summarized here above. On the first ground that the evidence of the prosecution lacked merits, it is clear that the evidence of PW1 and PW2 has explained what transpired on the 6/7/2015. Their account is the same and there is no contradiction save for the name of the village where the plants were found planted, which in my view is not material as it did not affect the substance of the charge.

The two witnesses told the court how they spotted suspicious plants growing in the Appellant’s shamba and on moving closer, they realized that it was bhang. They uprooted the same and the sample was taken to the government chemist for analysis and it was confirmed to be bhang.

The Appellant admitted that he was the owner of the farm and that he had planted the plants. Infact, in his defence, he regretted having planted the plants/trees and he stated that he will not plant them again if they are prohibited.

I therefore find that the evidence by the prosecution witnesses is sufficient and the case was proved beyond any reasonable doubt.

The other ground is that the Appellant’s constitutional rights were violated as he was incarcerated beyond the period stipulated under the law. According to the record, the Appellant was arrested on the 6/7/2015 and it must have been after 5 pm because, that is the time PW1 and PW2 arrived in his shamba. He was arraigned in court the following day when the plea was taken. It is not therefore true that his constitutional rights were violated as alleged.

The other ground is that the sentence is harsh and excessive. He is charged under section 6 (a) and (b) of the Narcotic Drugs and Psychotrophic substances Control Act No 4 of 1994. Under that section, a person found guilty of cultivating any prohibited plant is liable to a fine of two hundred and fifty thousand shillings or three times the market value of the prohibited plant, whichever is greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment.

The sentence of 4 years imprisonment meted out on the Appellant is reasonable and especially considering that he is not a first offender.

After evaluating the evidence as I have done here above, I find that the Appeal has no merits and I hereby dismiss the same and uphold the conviction and the sentence as meted out by the Trial Court.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

.......................

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent