[2013] KEHC 2000 (KLR)
The court found that the charge against the appellant was defective because it cited a non-existent section (section 2(a)) of the Narcotic Drugs and Psychotropic Substances Control Act and failed to properly particularize the offence. The appellant was charged with storing Cannabis Sativa, not with cultivation or...
Source-derived case information.
- Citation
- [2013] KEHC 2000 (KLR)
- Parties
- Appellant: Joseph Ndolo Maweu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 66 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Narcotic Offences, Defective Charge Sheet, Plea of Guilty, Sentencing, Quashing Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ndolo Maweu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge against the appellant was defective on material aspects and particulars.
- 2 Whether the conviction and sentence based on a plea of guilty to a defective charge can stand.
Ratio Decidendi
The court found that the charge against the appellant was defective because it cited a non-existent section (section 2(a)) of the Narcotic Drugs and Psychotropic Substances Control Act and failed to properly particularize the offence. The appellant was charged with storing Cannabis Sativa, not with cultivation or gathering as defined under the cited section. Since the charge was fundamentally defective, the conviction and sentence based on the plea of guilty could not stand. The court further noted that the appellant had already served more than three years imprisonment, making a retrial unnecessary. Consequently, the conviction was quashed and the sentence set aside, and the appellant...
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 66 OF 2010
JOSEPH NDOLO MAWEU…......…...................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 566 of 2010 of the Chief Magistrate's Court at Mombasa – Hon. Kirui - PM)
JUDGMENT
The Appellant herein was Convicted and Sentenced to ten (10) years imprisonment and in addition fined Ksh. 1 million or to serve two and half (2½) years imprisonment in default for the offence of trafficking in Narcotic drugs contrary to section 4(a) of the Narcotics drug and psychotropic substances Control Act No. 4 of 1994 as read with section 2 (a) of the same Act.
The Accused pleaded guilty to the charges and was Convicted on his own plea and Sentenced accordingly. A perusal of his submissions shows that his appeal is against Sentence. It is noted that he was Convicted for the offence of trafficking in Narcotic drugs contrary to section 4(a) of the Narcotic drugs and psychotropic substances Act No. 4 of 1994 as read with section 2(a) of the same Act.
Section 2 provides for interpretation. There is no section 2(a) in the act. Section 2(1) (a) is in regards to illicit traffic and defines illicit trafficking as (a) the cultivation of any coca bush or gathering any portion of a coca plant.
The appellant in this case is not charged with trafficking of cocaine but with Cannabis Sativa. He is not charged with cultivation or gathering but with storing Cannabis Sativa.
For all intents and purposes therefore, the charge is defective on material aspects and or particulars.
It is noted that he has already served more than three years imprisonment. There will be no need of ordering for a retrial.
The Conviction is hereby quashed and the Sentence set aside.
He is set at liberty unless otherwise lawfully held.
Judgment delivered dated and signed this 1st day of October, 2013.
…..............
M. MUYA
JUDGE
1ST OCTOBER, 2013
In the presence of:-
Learned State Counsel Mr. Ayodo for the state
The Appellant
Court clerk Mr. Musundi