[2002] KEHC 442 (KLR)
The court found that the appellant was in exclusive possession of the premises where the narcotic drugs were found, as evidenced by his possession of the keys and payment of rent. The landlady's testimony and rent receipts were accepted as truthful. The appellant's retracted confession was properly admitted after a...
Source-derived case information.
- Citation
- [2002] KEHC 442 (KLR)
- Parties
- Appellant: Habib Juma Hassan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 271 of 2002
- Procedural Posture
- Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
- Outcome
- Conviction upheld; sentence of imprisonment set aside and substituted with Community Service Order for three years, subject to suitability report.
- Legal Topics
- Narcotic Drugs Possession, Criminal Sentencing, Community Service Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Habib Juma Hassan
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the appellant was in possession of narcotic drugs contrary to Section 3(1) of the Narcotic Drugs and Psychotropic Substances Control Act No.4 of 1994.
- 2 Whether the conviction was supported by the evidence on record.
- 3 Whether the sentence imposed was appropriate in the circumstances.
Ratio Decidendi
The court found that the appellant was in exclusive possession of the premises where the narcotic drugs were found, as evidenced by his possession of the keys and payment of rent. The landlady's testimony and rent receipts were accepted as truthful. The appellant's retracted confession was properly admitted after a trial within a trial. The court held that the prosecution had proved its case beyond reasonable doubt. However, considering the appellant was a first offender with dependents, and in light of the State Counsel's recommendation and the policy objectives of the Community Service Orders Act, the court determined that a custodial sentence was excessive. The sentence of five years...
Court Disposition
Conviction upheld; sentence of imprisonment set aside and substituted with Community Service Order for three years, subject to suitability report.
Orders
- The sentence of five years imprisonment is set aside.
- The appellant shall serve Community Service for a period of three years.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CRIMINAL APPEAL NO.271 OF 2002
(Being an appeal from Original Conviction and Sentence in Criminal Case
No.293 of 2001 of the Chief Magistrate’s Court at Mombasa – F.N.
Muchemi, CM)
HABIB JUMA HASSAN …………………..………………… APPELLANT
VERSUS
REPUBLIC ………………………………………………… RESPONDENT
J U D G M E N T
The appellant Habib Juma Hassan was charged with the offence of being in possession of Narcotic Drug Contrary to Section 3(1) of Narcotic Drugs and Psychotropic Substances Control Act No.4 of 1994.
After trial he was found guilty and sentenced to a term of imprisonment for 5 years. He now appeals against conviction and sentence.
The simple facts disclosed by prosecution evidence is that on 20/1/2001 at mi-day the police officers PW.2, PC. Wambua and PC Kinyua PW.3, were on patrol in Magongo area of Mombasa city. They received information that there was a person who was keeping drugs (bhangi) in a certain premises. The officers were led to the house where they found a woman (PW.1) who said she was the landlady of a room she referred to as a store. She said she had rented the store to the appellant as a residential premises. The woman told them that the appellant was not in on that day and that the appellant used to sleep in the house from time to time. The policemen laid an ambush nearby and eventually the appellant approached the premises. He was pointed to them by their informer. The police officers arrested the appellant and walked with him to the premises. He voluntarily opened the premises with a key and inside the house the policemen found 4 plastic bags and 3 bags full of bhangi. They took the items as exhibits. The appellant locked the door securely with his key. The appellant in his arguments in court tended to deny the ownership of the premises. The fact is that he had the keys of the premises is an indication that he had full and exclusive use of the premises. The owner of the premises said the appellant had rented premises for Shs.1500/- p.m. and she collected rent from the appellant. She was able to show copies of receipts of his rent payments. The appellant says the receipts were forged but the witness said that he had the original receipts which is quite normal. I find her evidence truthful.
In addition to the evidence the Appellant made a statement to the police under caution. This statement was retracted and a trial within a trial was held.The trial court found that the statement was admissible. I have examined these proceedings of trial within trial and it is clear the Trial Magistrate was correct in admitting the statement.
Upon considering the total evidence including the defence of the accused with his witness I am convinced that the appellant was in possession of the large quantity of bhangi. He was in exclusive possession of the premises in which the bhang was found. Whether he was residing in the premises or not is not important. He had the keys to the premises. It is of note that his wife who gave evidence also admitted to being on a charge relating to narcotic drugs at the time of this trial.
On the issue of sentence it is to be noted that the offence committed is serious as are all offences under the Act. However there are certain mitigating factors here. The appellant has relatives and family who depend on him wholly. He was a first offender. The State Counsel Ms. Kwena was of the view that the sentence was on the higher side and she recommended rehabilitation order. There is also the provisions of the Community Service Order Act designed to keep convicts out of prison to be considered. Our prisons are overpopulated with prisoners and it may not serve any purpose to sending more and more persons inside. On the other hand the law has to be applied. Punishment must be suffered by those who are found guilty.
In the circumstances I am inclined to set aside the 5 years imprisonment but substitute the same with a Community Service Order. The appellant shall serve Community Service for a period of 3 years.
I am told that for drug offences there will be established rehabilitation facilities but there is none to-date in this Province.
In the circumstances I shall call for a report from the Community Service Officer as to suitability of placing the appellant under Community Service Order. The case shall be mentioned on 2/9/2002 for receiving report.
Dated at Mombasa this 7th Day of August, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE