[2005] KEHC 1132 (KLR)
The court found that the evidence of the conductor and a fellow passenger, both of whom identified the appellant as the person who boarded the matatu with the luggages containing cannabis sativa, was credible and sufficient. The trial magistrate's assessment of the witnesses' demeanour was upheld, and there was no...
Source-derived case information.
- Citation
- [2005] KEHC 1132 (KLR)
- Parties
- Appellant: Gerald Muchiri Kiruma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 445 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Possession of Narcotics, Evidence Evaluation, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald Muchiri Kiruma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was in possession of cannabis sativa as defined under the law.
- 2 Whether the evidence adduced was sufficient to support the conviction.
- 3 Whether the sentence imposed was harsh or excessive.
Ratio Decidendi
The court found that the evidence of the conductor and a fellow passenger, both of whom identified the appellant as the person who boarded the matatu with the luggages containing cannabis sativa, was credible and sufficient. The trial magistrate's assessment of the witnesses' demeanour was upheld, and there was no reason to believe the appellant was falsely accused. The appellant's defence of total denial was not plausible in light of the consistent and corroborated prosecution evidence. The sentence of 10 years imprisonment was justified given the appellant's previous convictions and the large quantity of bhang involved. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of 10 years imprisonment are upheld.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL 445 OF 2002
GERALD MUCHIRI KIRUMA……………..……………….………….APPELLANT
VERSUS
REPUBLIC…………………………………………………….……….RESPONDENT
J U D G M E N T
Gerald Muchiri Kiruma hereinafter referred to as the appellant was tried and convicted by the Senior Principal Magistrate Murang’a for the offence of Being in Possession of Bhang Contrary to Section 3(1) as read with Section 3 (2) of the Narcotic Drugs and Psychotropic Substance Control Act No.4 of 1994. He was sentenced to serve 10 years imprisonment. Being aggrieved He has now appealed against his conviction and sentence.
During the trial before the lower court, a total of 8 witnesses testified. Their evidence was that on the material day, the appellant was traveling in a matatu Registration Number KAL 847R which was traveling from Nairobi to Gitugi via Kiriaini.
P. C. Raphael Paul Mwita (P.W.1) and P.C. Benjamin Kiswili (P.W.7) who had received a tip off, laid an ambush and stopped the vehicle at Kiriani.
They took the vehicle to Kiriaini Police Post and ordered all the passengers to come out with their lugages. They searched the vehicle and recovered 4 luggages which were not claimed. The luggage contained 21kg of plant material suspected to be bhang.
The appellant was also searched and 1 roll of bhang recovered from him. Investigations were carried out and Harun Kahuga the conductor of the matatu identified the appellant as the passenger who had boarded the matatu with the 4 packages. One passenger Anne Wangui Mbao (P.W.6) also identified the appellant as the person she had seen with one of the packages which was in a yellow paper bag.
The plant material was forwarded to the Government analyst where it was examined by Simon Ndumbi Atebe a government analyst who confirmed that the plant material was cannabis sativa included as a narcotic drug under the Narcotic Drug and Psychotropic Substances Control Act 1994. In his defence the appellant admitted having boarded the Matatu but maintained that He did not have any luggage.
I have reconsidered and evaluated the evidence that was before the trial magistrate. It is evident that the question was whether the appellant was established to be in possession of the cannabis sativa which was recovered from the matatu in which the appellant was a passenger. Harun Kahuga and Anne Wangui Mbao both testified that the appellant was the one who had one of the packages found to contain the cannabis sativa.
Both witnesses recalled one of the luggages very well as it was in a yellow paper bag which P.W.6 explained the appellant had to put down to enable her pass. It is evident that all the people who were in the matatu were locked in the cells while the police carried out their investigations. This did not however vitiate the evidence of P.W.3 and P.W.6. There were many other passengers in the matatu and they had no reason to pick on the appellant and accuse him falsely. The trial magistrate who assessed the demeanour of the witness believed that these two witnesses spoke the truth. I have no reason to depart from this finding. In the circumstances the defence of the appellant which was just total denial could not hold. I find that there was sufficient evidence in support of the appellant’s conviction.
As regards the sentence, from the certificate of previous conviction the appellant had two relevant previous convictions (even though trial magistrate spoke of one). The quantity of the bhang was also large. In the circumstances the sentence of 10 years was well merited. It is neither harsh nor excessive such as would justify the intervention of this court.
I therefore find no merit in this appeal and do dismiss it.
Dated, signed and delivered this 6th day of December 2005. H. M. OKWENGU
JUDGE