[2013] KEHC 1280 (KLR)
The court held that although Section 3(2) of the Act prescribes a minimum sentence of 20 years for possession of cannabis sativa, the court must consider the special circumstances of each case. In this instance, the appellant was a first offender, pleaded guilty, did not waste the court's time, and the value of the...
Source-derived case information.
- Citation
- [2013] KEHC 1280 (KLR)
- Parties
- Appellant: Jesse Muriithi Kibathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 227 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence set aside and quashed; probation officer's report ordered
- Judges
- RPV Wendoh
- Legal Topics
- Sentencing Principles, Possession of Narcotics, First Offender Considerations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesse Muriithi Kibathi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the 20-year custodial sentence imposed on the appellant for possession of cannabis sativa was excessive in the circumstances.
- 2 Whether the court should consider the appellant's status as a first offender, his plea of guilty, and the value of the drugs in sentencing.
Ratio Decidendi
The court held that although Section 3(2) of the Act prescribes a minimum sentence of 20 years for possession of cannabis sativa, the court must consider the special circumstances of each case. In this instance, the appellant was a first offender, pleaded guilty, did not waste the court's time, and the value of the drugs was not high. These mitigating factors rendered the 20-year sentence excessive. The court set aside and quashed the custodial sentence, taking into account the period already served, and directed that a Probation Officer's report be filed to consider the suitability of probation for the appellant.
Court Disposition
sentence set aside and quashed; probation officer's report ordered
Orders
- The custodial sentence of 20 years imprisonment is set aside and quashed.
- A Probation Officer's report to be filed within two weeks for consideration of probation.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 227 OF 2010
JESSE MURIITHI KABATHI……………..…..……..APPELLANT
VERSUS
REPUBLIC………………………………..………..RESPONDENT
JUDGMENT
The appellant, Jesse Muriithi Kibathi was charged with the offence of being in possession of cannabis sativa (bhang) contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Subsances Act No. 4 of 1994. The appellant was found in possession of 184 rolls worth Kshs.3,680/-. He pleaded guilty to the charge; he was convicted and was sentenced to 20 years imprisonment in accordance with Section 3(2) of the Act. He has appealed against the sentence which he claims is too harsh, that he was a first offender, the sole bread winner, is remorseful and has reformed during the period he has been in prison.
The learned State Counsel had no objection to the appeal contending that the sentence was too harsh.
The appellant was found in possession of 184 rolls of bhang. The appellant admitted that he sells the bhang to earn a living meaning that it was not for his own consumption but for commercial purposes. Section 3(2) of the Act provides for the minimum sentence of 20 years, but I believe that the court had to look at the special circumstances of each case. In this case, the value of the drugs is not high. The appellant pleaded guilty and did not waste the court’s time. He was said to be a first offender. Taking into account all the above facts. The court finds the sentence to be excessive in the circumstances, will set aside the sentence and quash it. The appellant has been in prison since 15/7/2010, over three years now. Instead of the custodial sentence, the court will take into account the period served and will ask for Probation Officer’s report to consider whether the appellant can benefit from probation. It is directed that a Probation Officer’s report be filed within two weeks hereof for the court’s consideration.
DATED and DELIVERED this 16th day of October, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
The appellant in person – present
Mr. Chirchir for the State
Kennedy – Court Assistant