[2017] KEHC 6423 (KLR)
The trial magistrate erred by treating the prescribed sentence as a minimum rather than a maximum and by concluding, without evidence, that 15.5 grams of cannabis was not for personal consumption. The court found that the sentence of twelve years was manifestly harsh given the circumstances, including the...
Source-derived case information.
- Citation
- [2017] KEHC 6423 (KLR)
- Parties
- Appellant: Hassan Osman Chitto; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence reduced to period served; appellant to be released unless otherwise lawfully held
- Judges
- KW Kiarie
- Legal Topics
- Narcotic Drugs Possession, Sentencing Principles, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Osman Chitto
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence imposed for possession of cannabis was lawful and proportionate.
- 2 Whether the defect in the charge sheet prejudiced the appellant.
Ratio Decidendi
The trial magistrate erred by treating the prescribed sentence as a minimum rather than a maximum and by concluding, without evidence, that 15.5 grams of cannabis was not for personal consumption. The court found that the sentence of twelve years was manifestly harsh given the circumstances, including the appellant's plea of guilty and the quantity involved. The defect in the charge sheet did not prejudice the appellant and was curable. The period already served was deemed adequate punishment, and the sentence was reduced accordingly.
Court Disposition
sentence reduced to period served; appellant to be released unless otherwise lawfully held
Orders
- The sentence of twelve years imprisonment is set aside and substituted with a sentence of the period already served.
- The appellant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL APPEAL NO.31 OF 2016
HASSAN OSMAN CHITTO ................................................ APPELLANT
VERSUS
REPUBLIC ……………………………………………………. RESPONDENT
(From the original conviction and sentence in criminal case No.340 of 2012 of the Principal Magistrate’s Court at Marsabit by Hon. A.G Munene – Ag. Senior Resident Magistrate)
JUDGMENT
The appellant,HASSAN OSMAN CHITTO, was convicted for the offence of being in possession of narcotic drugs (cannabis) contrary to section 3(1) (2) (a) (sic) of the Narcotic Drugs and Psychotropic Substances Control Act of 1994.
The particulars of the offence were that on 13th December 2012 atMarsabittownship in Marsabit Central District of Marsabit County, he was found in possession of 36 rolls (15. 5 grams) of cannabis valued at Kshs. 720/= which was not in medicinal preparation form.
He pleaded guilty to the offence and was sentenced to serve twelve years imprisonment. He has appealed against the sentence.
The charge was erroneously drafted. It ought to have read contrary to "section 3(1) as read with section 3(2) ..."
The appellant understood the charge before pleading to it. He was not prejudiced in any way and the defect is curable under section 382 of the Criminal Procedure Code.
Section 3(2) of the Narcotic drugs and Psychotropic Substances Control Act provides as follows:
A person guilty of an offence under subsection (1) shall be liable—
(a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment for ten years and in every other case to imprisonment for twenty years;
In sentencing the appellant, the learned trial magistrate approached the issue as if the prescribed sentence was the minimum whereas it was the maximum. The maximum sentence where the cannabis was for personal consumption was 10 years and in every other case to imprisonment for twenty years. It was erroneous for the learned trial magistrate to conclude that 15. 5 grams was not for personal consumption without evidence to the contrary.
I agree with the appellant that in the circumstances of this case, the sentence was manifestly harsh. He has already served four years imprisonment. In my view, this is adequate punishment for the offence. I therefore reduce the sentence to the period served. The appellant to be set at liberty forthwith unless if otherwise lawfully held.
DATEDatMarsabitthis19thday of April, 2017
KIARIE WAWERU KIARIE
JUDGE