[2004] KEHC 1109 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPLICATION NO.182 OF 2004

JAMIL GAVOGA LUGANDA………………………APPLICANT VERSUS REPUBLIC………………………………………..RESPONDENT

R U L I N G

This is an application brought pursuant to the provisions of section 349 of the Criminal Procedure Code, Cap 75, although upon the face of the said application it is indicated that the statute is the Civil Procedure Code.

I presume that it is the Criminal Procedure Code because there is no statute known as Civil Procedure Code. Also, the Civil Procedure Act would have absolutely no relevance to these criminal proceedings. The other reason why I have deemed it prudent to make the foregoing presumption is because none of the parties took issue with the statute cited.They both argued the matter, as if it had been filed pursuant to the provisions of the Criminal Procedure Code. However, I must emphasize the importance of counsel exercising due care and attention to these seemingly simple matters, as they could easily result in applications being duly struck out by the court.

Section 349 of the Criminal Procedure Code provides as follows;

“An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:

Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefore.”

I have deemed it necessary to set out the wording of this section, as the applicant has not only sought to be granted leave to appeal out of time, but also the following further orders:-

“(2) THAT the Petition of Appeal hereto annexed be deemed duly filed, (3) THAT pending the hearing and determination of appeal the Appellant is admitted to bail.

(4) THAT there be such other or further orders as the court deems fair and expedient to grant.”

The application is supported by the affidavit of Mr. Ojwang Agina Advocate. The gist of the applicant’s reasons for the application are as follows:-

(a) The delay is not inordinate.

(b) The appeal has overwhelming chances of success.

(c) The substance cannabis sativa is not in schedule 1 of the Narcotic Drugs and Psychotropic Substances (Control) Act 1994.

(d) No expert was called as a witness to verify that the exhibit was cannabis.

(e) The magistrate failed to explain to the applicant the purport of mitigation.

(f) The sentence of 2½ years in custody was too harsh in the circumstances.

I will strive to address each of the issues, in turn.

(a) Delay not inordinate (?)

The judgment was delivered on 16th February, 2004, and the applicant was notified that he had a right of appeal within 14 days. The Petition of Appeal ought therefore to have been filed by 1st March, 2004.

The affidavit in support of the application states that the applicant’s relatives instructed counsel on 28th February, 2004. A glance at the calendar shows that that date fell on a Saturday. Having been so instructed, the advocates applied for the certified record of the proceedings, on Tuesday 2nd March, 2004.

Thereafter, this application was prepared. The application itself is dated 10th March, 2004, although, for some unexplained reasons, it was filed in court on 2nd April 2004. Be that as it may, I do not think that the applicant has been guilty of inordinate delay in bringing the present application. Indeed even the respondent did not take serious issue in that regard. I do therefore grant leave to the applicant leave to file his appeal out of time.

(b) Does the appeal have an overwhelming chance of success; as, (i) cannabis sativa is not known in law?

The applicant contends that he was charged with an offence which is not known in law. He says that the substance cannabis sativa is not mentioned in Schedule 1 to the Narcotic Drugs and Psychotropic Substances (Control) Act 1994.

The simple and direct answer to this assertion is that the substance cannabis is expressly cited in Schedule 1.

Therefore the offence with which the applicant was charged is definitely known to the law.

(ii) Facts did not match the charge sheet

The Applicant contended that whereas the charge documents stated that the exhibit was made up of 2. 5 kg and 125 rolls of the substance, the prosecution cited 3 kg of bhang. The applicant argues that in view of the inconsistency between the weights of the substance, the trial magistrate should have sought confirmation from the prosecutor. Mr. Odeny advocate, says that the court had an obligation to address that issue notwithstanding the applicant’s plea of guilty. However, when I sought to know if he had any legal authority to back that submission, counsel had none.

In answer to these submissions, the learned state counsel Mr. Ogetii said that the trial magistrate could not be faulted for the manner in which he handled the case. He said that the procedure adopted by the trial court in entering conviction and in sentencing was indeed the correct procedure. Once an accused pleaded guilty, the prosecutor reads out the facts, which if admitted, leads the magistrate to enter conviction.

In this case, that is the procedure that was applied. While conceding that the weight of the substance was not the same as between that stated on the charge sheet and that read out by the prosecutor, the respondent submits that the discrepancy could not in any way prejudice the applicant.

I do accept as correct, the submission by the respondent.

I believe that once the applicant confirmed that the facts read out by the prosecutor were true, the court was right to have entered conviction. However, I should not be perceived to be laying down a hard and fast rule in this regard. I believe that each case needs to be handled on the basis of its own circumstances. I recognize that there might be some cases wherein if the facts read out do not bring out the gist of the offence cited in the charge sheet, the court would not be entitled to enter a guilty plea. There might also be instances where the facts do not actually disclose an offence. However, one fundamental issue that ought to be uniform in all cases is the need for the prosecution to be as careful as possible in ensuring that the facts tally with the information set out on the charge sheet. If the facts did not tally with the information on the charge sheet, there would be a genuine danger to the conviction being upheld, if it were challenged on appeal.

Although, as I have said hereinabove, not all minor discrepancies would result in a successful appeal. In this case, the differences in weight could not by itself upset the conviction based on a guilty plea.

(iii) No expert witness verified the exhibit

The applicant faults the trial magistrate for not insisting that the exhibit be verified by an expert witness, prior to his conviction.

I must confess that I did not fathom this submission by the applicant. I am not able to understand the need for expert evidence to verify facts which have been admitted by the accused. To my mind, evidence only becomes necessary to prove that which is denied. Thus if the applicant had insisted that the substance he was arrested with was not cannabis, there would have been a need for the trial magistrate to insist that, prior to conviction, the prosecution should call evidence to verify the substance. It would be a waste of valuable judicial time to insist on verification of something that was not in dispute.

(iv) Mitigation not explained

The applicant’s counsel complained that the trial magistrate did not explain to the applicant the purport of mitigation. He said that the trial magistrate had a duty to give the said explanation.

In response, the state states that the applicant has failed to adduce evidence that the applicant was in need of any explanation.

The record is predictably very brief. That is to be expected in cases such as this, wherein the accused person pleaded guilty. Nothing turns on the length of the record of the proceedings. However, it is significant that in this case, the application was filed by counsel on the instructions of relatives of the applicant. The applicant has not sworn an affidavit to say that he sought an explanation from the court. I believe that it would be presumptuous to assume that the applicant was in need of an explanation. I therefore hold the view that the absence, from the record, of an explanation on the purport of mitigation is not ground enough to found that the intended appeal has an overwhelming chance of success.

(v) Sentence too harsh?

The applicant was sentenced to two and a half (2½ ) years imprisonment. He was not given the option of a fine. His advocate says that the said sentence was too harsh in the circumstances, as the applicant was a first offender. He therefore expressed the view that there was a high probability of the appeal succeeding against sentence.

Section 3(2) of the Narcotic Drugs and Psychotropic Substances (Control) Act stipulates 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”.

Clearly therefore, the statute does not provide for the option of a fine or non-custodial sentence. Therefore, the trial magistrate could not be faulted for giving custodial sentence.

And as regards the length of the said sentence, all I can say at this stage, is that it does not appear to be manifestly excessive. The sentence is well within the limits set by statute.

Conclusion

Having given due consideration to the application, it should by now be clear that the applicant has failed to persuade me that he ought to be admitted to bail pending appeal. This decision has been reached on the merits of the application before me.

However, before concluding this matter, it is incumbent upon me to make it clear that I could have struck out the application for bail pending appeal, without going into the merits. Section 357(1) of the Criminal Procedure Code stipulates that –

“After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced the person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal.”

In this case, there is yet no appeal pending. The court has only just granted leave to the applicant to file his appeal .

And whereas the applicant has sought an order that the Petition of Appeal annexed to his application be deemed duly filed, it would be improper to grant his request. The so called Petition of Appeal, is at this stage, no more than a draft. Once the court grants leave, the applicant will now have to file the proper Petition of Appeal.

Secondly, it is important to disabuse the applicant of his notion that he has a good chance of succeeding on an appeal against conviction. Section 348 of the Criminal Procedure Code deals a fatal blow to the applicant’s designs of appeal against conviction. The said section reads as follows;

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence”.

When confronted with this provision, Mr.Odeny advocate did eventually concede that the applicant could not appeal against conviction.

Finally, the respondent submitted that the current application was not filed on the instructions of the applicant himself. This submission is founded upon the wording of the affidavit of Mr. Ojwang Agina advocate, in which he states that he was instructed by the applicant’s relatives. This court has noted the said statement in Mr. Agina’s affidavit. However, I am not prepared to conclude that the statement necessarily implies that the applicant did not bring this application. It is entirely possible that the applicant who is in custody could have sent his relatives to give instructions to the advocates.

However, I must also point out, that the best practice ought to be that in which the advocate obtains instructions directly from the applicant.

I now conclude this decision by reiterating that the applicant herein has been granted leave to file his appeal out of time. The appeal shall be filed within the next twenty one days. Meanwhile, the applicant shall not, for now, be admitted to bail pending appeal.

Dated at Nairobi this 26th day of April 2004.

FRED A. OCHIENG

Ag. JUDGE