[2017] KEHC 4340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL APPEAL NO 4 OF 2017

JUMA ISSA MOHAMED…... APPELLANT

VERSUS

REPUBLIC ………………… RESPONDENT

(From original conviction and sentence in Criminal Case Number 362of 2015 in the Senior Principal Magistrate’s Court at Voi delivered by Hon M. Onkoba(SRM) on 7th November 2016)

JUDGMENT

INTRODUCTION

1. The trial herein was commenced by Hon E.M. Kadima, Resident Magistrate. Subsequently, Hon M. Onkoba, Senior Resident Magistrate (hereinafter referred to as “the Learned Trial Magistrate”) took over the matter and convicted the Appellant herein, Juma Issa Mohammedfor the offence of trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substance (Control) Act No 4 of 1994. He fined the Appellant Kshs 1,000,000/= and in addition sentenced him to serve life imprisonment.

2. The particulars of the offence were as follows:-

“On the 21stday of May 2015 at Voi town within Taita Taveta County, jointly with others not before the court trafficked narcotic drugs by conveying to wit four (4) sacks of cannabis sativa (Bhang) in a motor vehicle registration number KBP 605X Make Mitsubishi F.H. Yellow in colour with a street value of Kshs 160,000/= (One hundred and sixty thousand shillings only) in contravention of the said act.

3. Being dissatisfied with the said judgment, on 16th January 2017, the Appellant filed a Notice of Motion application seeking leave to file his appeal out of time. The application was allowed and the Petition of Appeal deemed as having been duly filed and served. He relied on five (5) grounds of appeal in his Memorandum of Appeal. On 16thMarch 2017, he filed six (6) Amended Grounds of Appeal along with his Written Submissions.

LEGAL ANALYSIS

4. Being the first appellate court, this court is under a duty to re-examine the evidence that was adduced in the lower court as was held by the Court of Appeal in the case of Odhiambo vs Republic Cr. App No. 280 of 2004 (2005) 1 KLR where it was stated that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”.

5. Having looked at the Grounds of Appeal and the Written Submissions, it was the view of this court that the following were really the issues that had been placed before it for determination:-

a. Whether or not the Charge Sheet was defective;

b. Whether or not his trial was a nullity as it was conducted by more than one (1) trial magistrate;

c. Whether or not the Prosecution not prove its case beyond reasonable doubt; and

d. Whether or not the Learned Trial Magistrate failed to consider his defence.

6. The facts of the case herein were that on 21st May 2015 at about 0200 hours, No 2010070269 PC Martin Wambua (hereinafter referred to as “PW 1”), No 37182 No 37182 PC David Matere Mwinzi (hereinafter referred to as “PW 2”) and No 2006081073 PC Rimba Edward Chimwaga (hereinafter referred to as “PW 3”) were on normal foot patrol duties within Voi town when they sawMotor Vehicle Registration Number KBP 605X Make Mitsubishi F.H. Yellow in colour that had been parked and unattended for a long time.

7. When they inspected the said Motor Vehicle, they found four (4) sacks of bhang. The Appellant who was lying on the ground tying (sic)the turpentine was arrested while his two (2) accomplices escaped. The said Motor Vehicle was then towed to Voi Police Station where a thorough search revealed the (4) sacks of bhang. Corporal Mary Ngau (hereinafter referred to as “PW 4”) produced in evidence the four (4) sacks of bhang.

8. When the Appellant was interrogated, he denied that the said bhang belonged to him. An analysis of the drugs was conducted by the Government Chemist. In his evidence, George Lawrence Oguda (hereinafter referred to as “PW 5”),produced in evidence a Report dated 26th August 2015 in which he indicated that an analysis of the samples of the dry matter was found to have been bhang.

9. The Appellant adduced sworn evidence. In his evidence, he testified that he was businessman in Kilifi. He had come to Voi to look for work after receiving a call from one Mukutano Kiraowho had informed him that there was an opening at CRBC in Voi. He was directed to Kirao’s house at Tanzania, Voi where he stayed with him for three (3) days. Although he got a job 21st May 2015, his wife called him and informed him that her uncle had passed away.

10. He borrowed Kshs 1,000/= from Kirao to travel back home. When he went to the stage and asked if he could find a bus to Mombasa, he was directed to a lorry where he found two (2) people. As he was standing next to the said lorry, police officers came and surrounded it. The two (2) people who were loading luggage walked away. As he made to leave the scene, the police stopped him and took him to Voi Police Station where they informed him that the said Motor Vehicle was trafficking bhang.

11. According to Samson Chirau Karisa (hereinafter referred to as “DW 2”), the Appellant who was his neighbour, went to his house and borrowed Kshs 1,000/= to enable him travel home as his relative had died. He took the Appellant to the stage. The Appellant’s wife called him two (2) days later and informed him that the Appellant had been arrested.

12. In arguing his Appeal, the Appellant contended that the Charge Sheet was defective. It was his averment that analysis confirming that the dry matter was bhang was done way after he had been charged. It was his submission that the Prosecution could not for a fact have charged him without having known that the dry matter was bhang.

13. As was rightly averred by the State, there was no defect in the charge. A charge did not merely become defective because the evidence was subsequently obtained. The burden of proof lay on the Prosecution to prove that the substance the Appellant had been charged being in possession with was in fact bhang. There was therefore no merit in the Appellant’s Amended Ground of Appeal that the Charge Sheet was defective.

14. There was also no merit in his Amended Ground of Appeal that the trial was a nullity on the ground that the Learned Trial Magistrate did not comply with the provisions of Section 200(3) of the Criminal Procedure Code Cap 75(Laws of Kenya). Indeed, a perusal of the proceedings showed that on 19th August 2016 the Learned Trial Magistrate explained the provisions of Section 200 of the Criminal Procedure Code whereupon the Appellant confirmed that the matter could proceed from where it had reached without recalling witnesses. This was a position that was rightly pointed out by the State.

15. Turning to the question as to whether or not the Prosecution proved its case beyond reasonable doubt, this court noted that Appellant’s arguments that the owners of the luggage ran away after sensing danger but that he did not run away because he was not guilty. He added that he was arrested far from the said Motor Vehicle and that the police had in fact confirmed that he was not the driver or turnboy of the said Motor Vehicle.

16. This court noted the State’s assertions that the Appellant was not found with any luggage at the time of his arrest and that he did not allude to having had any luggage in his evidence. It was reasonable to have expected him to have been carrying luggage as he was travelling home for a funeral having stayed with DW 2 for three (3) days in Voi.

17. The absence of reference to any luggage made the Appellant’s story that he was returning home highly suspect. However, as there was a possibility that he did not mention his luggage because it was not a material issue to him, this court did not attach too much importance to the State’s aforesaid observation.

18. However, a careful perusal of the evidence that was adduced by the Prosecution witnesses persuaded this court to find and hold that the Appellant was not innocent of the accusations that had been levelled against him as his evidence and that of DW 2 materiallydiffered and contradicted each other.

19. DW 2’s evidence during Cross-examination that he hosted the Appellant for three (3) days in his house as the Appellant looked for work and that he had known the Appellant for over four (4) years as his neighbour in Tanzania village in Voicontradicted his very own evidence that he adduced during his Examination-in-chief to the effect that the Appellant had come to borrow money from him as his relative had died.

20. There was more contradiction in their evidence. DW 2 stated that he took the Appellant to the Stage. However, the Appellant did not allude to DW 2 having taken him to the stage. The Appellant merely stated that after he got the fare, he left for the stage.

21. It did also appear to this court that contrary to DW 2 assertions, they had not each other with the Appellant for four (4) years and that they were neighbours at Tanzania in Voi. Indeed, the Appellant testified that when Kirao called him to inform him of a job opening at CRBC, he told him that he stayed at Tanzania in Voi and that he was directed to his house. If they had been neighbours for the period of four (4) years as DW 2 had contended, then Kirao ought not to have told the Appellant that he stayed at Tanzania in Voi or for the Appellant to have sought directions to go to his place.

22. In his evidence, DW 2 stated that the Appellant’s wife was the one who informed him of the Appellant’s arrest. He was also vague regarding the date when the Appellant visited him. He only spoke of the month and year. DW 2’s evidence did not assist the Appellant as he was not present at the time the Appellant was arrested.

23. The above notwithstanding, this court also noted that the Appellant stated that he stayed with Mukutano Kirao. This contradicted DW 2’s evidence that he was the one who stayed with the Appellant as he was looking for a job. Notably, DW 2 told the Trial Court that his name was called Samson Chirau Karisa. The Appellant did not adduce any evidence to indicate that Mukutano Kirao and Samson Chirau Karisa was one and the same person, if at all. For all purposes and intent, this court was hesitant to accept that Mukutano Kirao and Samson Chirau Kirao was one and the same person.

24. It was apparent to this court that the Prosecution adduced cogent evidence. PW 1, PW 2 and PW 3 were emphatic that they arrested the Appellant next to the said Motor Vehicle that was found to have bhang. They were therefore certain that the Appellant was the person they arrested next the said Motor Vehicle. Had the Appellant escaped from the scene, the question of his identification would have come into sharp focus as the incident was said to have occurred at about 0200 hours when ordinarily the lighting conditions are not favourable, unless of course, there is sufficient light from other sources.

25. PW 5 was also categorical that the dry matter he was given to analyse by PW 4 was bhang. The Appellant did not adduce any expert evidence to rebut PW 5’s evidence. In the absence of any other evidence, this court was satisfied that the Prosecution proved its case against the Appellant beyond reasonable doubt and that the Learned Trial Magistrate acted correctly when he convicted the Appellant for the offence he had been charged with. He was found near the lorry where the bhang was found and in the circumstances, the same incriminated him in the offence.

26. The Learned Trial Magistrate dismissed his defence as a theory to extricate himself from an offence that he had committed. This court could not agree more. The Appellant’s Ground of Appeal that the Learned Trial Magistrate did not consider his defence thus was not merited.

27. Having said so, this court found that although the Appellant did not raise the issue of the severity of the sentence in his Written Submissions, the Learned Trial Magistrate imposed on him a manifestly excessive, severe and harsh sentence. This was also an issue that was picked up by the State which conceded that the Learned Trial Magistrate ought not to have sentenced the Appellant to life imprisonment as he was a first offender.

28. Section 4(a) of the Narcotics Drugs and Psychotropic Substance (Control) Act provides as follows:-

“Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—

a. in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;

29. In the case ofDaniel Kyalo Muema vs Republic [2009] eKLR,the Court of Appeal cited with approval the caseofOpoya vs Uganda[1967] EA 752 where it had been held in page 754 paragraph B as follows:-

“It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it”.

30. Further, in the case ofMohamed Famau Bakari vs Republic [2016] eKLRthat was relied upon by the State, the Court of Appeal at Malindi also rendered itself as follows regarding the term “liable to”:-

“…in addition but in more recent decisions of Carolyne Anna Majabu v RCr. Appeal No. 65 of 2014, Kabibi KalumeKatsui v R, Msa Cr. App. No. 90 of 2014,and Antony Mbithi Kasyula v R, Criminal Appeal No. 134 of 2012has reiterated that the word “liable” in section 4(a) of the Act merely provides for a likely maximum sentence and allows a measure of discretion to the court in imposing a sentence with a maximum limit being indicated.”

31. In the said caseMohamed Famau Bakari v Republic(Supra), the Court of Appeal substituted the life sentence with ten (10) years imprisonment and in place of a fine of Kshs1,000,000/=, it imposed a fine of Kshs10,000/= and in default the appellant to serve three (3) months imprisonment.

32. In the case of Moses Banda Daniel vs Republic [2016] eKLR,the same Court of Appeal reversed the sentence that had been meted upon the Appellant in the same manner as it did in the aforesaid case of Mohamed Famau Bakari vs Republic(Supra).

33. Notably, unlike in the case ofMohamed Famau Bakari v Republic(Supra) where the appellant therein had previous criminal records, the Appellant herein was a first offender.As the term “liable to life imprisonment in addition to a fine” is not the minimum but rather the maximum, it was the view of this court that it is not mandatory to impose a fine in addition to a custodial sentence at the same time.

34. Indeed, Section 26(3) of the Penal Code provides as follows:-

“A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment”

35. The key word therein is “may” which connotes some discretion on the part of the judicial officer imposing a penalty on a convicted person. In the case ofDaniel Kyalo Muema vs Republic (Supra), the court observed as follows:-

“From the language of Section 26 and 28 of the Penal Code, it is clear that those are general provisions of law which apply not only to the offences prescribed in the Penal Code but also to offences under other written laws.”

36. It is for that reason that this court exercised its discretion not to fine the Appellant herein in addition to imposing a custodial sentence as the provisions of Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act are also covered under Section 26 and Section 28 of the Penal Code.

DISPOSITION

37. The upshot of this court’s Judgment therefore was that the Appellant’s Appeal that was lodged on 16th January 2017 was not merited and the same is hereby dismissed. For the foregoing reasons, this court hereby affirms the conviction that was imposed upon the Appellant herein as it was safe to do so.

38. However, as the sentence that was imposed on the Appellant was harsh, severe and manifestly excessive, this court hereby sets aside the fine of Kshs 1,000,000/= and the life imprisonment and replaces the same with four (4) years.

39. It is so ordered.

DATED and DELIVERED at VOI this 18th day of July 2017

J. KAMAU

JUDGE

In the presence of:-

Juma Issa Mohamed - Appellant

Miss Anyumba - Respondent

Josephat Mavu– Court Clerk