[2017] KEHC 3358 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 28 OF 2016

JOHN KINYUA NJIRU…………..………………..…APPELLANT

VERSUS

REPUBLIC…………………………........................RESPONDENT

JUDGMENT

In the subordinate court, the Appellant herein JOHN KINYUA NJIRU was charged with the Offence of Trafficking in Narcotic Drugs Contrary to Section 4 as read with Section 4(a) of the NARCOTIC Drugs and Psychotropic Substances (control) Act NO 4 OF 1994, the particulars were that ;

On the 8th day of January, 2016 at Shauri Slums in Embu town within Embu County, was found selling Cannabis to wit 248 Rolls and 20 grammes in powder form all valued at Ksh 5000 which was not in medical preparation in contravention of the said Act.

The prosecution called 4 witnesses to prove the case.

The summary of the evidence as adduced by PW1, PW2 and PW4 was that on the 8/11/2016, they were on patrol in Embu town when at Shauri near Uchumi supermarket, they saw a group of youth on the side of the road smoking. They approached them and when they got near, they all fled but they managed to arrest the Appellant herein who had a paper bag. On examining the said paper bag, it had 248 rolls of bhang inside and 10 grammes of a substance that was suspected to be bhang. They arrested him and took him to Embu police station.

PW3 works for Government Chemist in Nairobi as an analyst. He stated that on 20/1/2016, he did analysis of some plant material that was forwarded to him by PC. Mburu from Embu police station and found the same to be cannabis SP which falls under the first schedule of the Narcotic Drugs and Psychotropic Substances (Control) Act no. 1994.

The Appellant was put on his defence. In his evidence, he told the court that on the 8/1/2016, he was on his way to work when he met a group of people running away from police officers. He was arrested by the said officers and was taken to the police station and while there he heard one of the police officers inquiring the offence they would charge him with, before the court. It was his evidence that the case is fabricated.

After the conclusion of the case, the learned Magistrate convicted the Appellant and sentenced him to serve 5 years in prison. Being dissatisfied with the conviction and the sentence, he has appealed to this court and has listed 5 grounds of Appeal which can be summed up as follows:

1. The learned Magistrate erred in law and fact by rejecting the Applicant’s defence.

2. The learned Magistrate erred by failing to consider that the prosecution did not prove the case beyond any reasonable doubt.

3. The Magistrate erred in law and fact by failing to consider that essential witnesses were not called to corroborate the evidence of the prosecution witnesses.

4. The Magistrate erred by failing to inform the Appellant of his right to be assigned an advocate by the state hence violating Article 50(2) (g) (h) of the constitution.

In his submissions, the Appellant abandoned all the grounds of Appeal and pleaded for leniency and mercy which therefore means that the Appeal relates to the sentence only. He asked the court to consider that he is a first offender.

The Appeal is opposed by the state and in the submissions, the learned state Counsel stated that the Offence of trafficking in Narcotic drugs is a serious one and the sentence of 5 years meted out on the Appellant is reasonable. That considering the quantity of the bhang that the Applicant had, it must have been for sale to members of the public and indeed he was found selling the same to people who run away on noticing the police officers.

I have considered the evidence on record and the submissions by the respective parties. The Appeal herein is on sentence as the Applicant abandoned the other grounds of Appeal. He argues that the sentence is excessive and has urged the court to be lenient and reduce the sentence. On the other hand, the state has asked the court to uphold the sentence as the same is reasonable.

The Appellant has been charged under Section 4 as read with Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994.

A person found guilty under that Section shall be liable to a fine of one million shillings or three times the market value of the Narcotic drug or Psychotropic Substances, whichever is greater, and, in addition to imprisonment for life.

The Appellant herein was sentenced to serve five years imprisonment which is reasonable and I find no reason why I should interfere with it.

The learned Magistrate noted that the Appellant is a first offender and he did also state that the offence is serious and its rampant in the area.

In the premises, I find the Appeal to be without merit and I dismiss the same.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

………………

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent