[2014] KEHC 6060 (KLR)
The court held that the charge was not defective because 'storing' is expressly included as a form of trafficking under the relevant statute. The evidence established that the appellant was found in possession of a significant quantity of cannabis sativa in his house, which he led police officers to, and the...
Source-derived case information.
- Citation
- [2014] KEHC 6060 (KLR)
- Parties
- Appellant: Kazungu Kitsao Thoya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 235 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- GO Shikwe
- Legal Topics
- Narcotic Offences, Sentencing Principles, Defective Charge, Evidence Weight, Drug Trafficking, Consecutive Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kazungu Kitsao Thoya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge of trafficking by storing narcotic drugs was defective.
- 2 Whether the conviction was against the weight of evidence adduced.
- 3 Whether the sentence imposed was harsh or unlawful.
Ratio Decidendi
The court held that the charge was not defective because 'storing' is expressly included as a form of trafficking under the relevant statute. The evidence established that the appellant was found in possession of a significant quantity of cannabis sativa in his house, which he led police officers to, and the substance was confirmed to be bhang by government chemists. The sentence imposed, consisting of a fine three times the value of the drugs and a term of imprisonment, was in accordance with the law and justified by the prevalence of drug misuse in the region. There were no grounds to interfere with either the conviction or the sentence, and the appeal was dismissed in its entirety.
Court Disposition
appeal dismissed
Orders
- The appeal is disallowed.
- The conviction and sentence of the trial court are upheld.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 235 OF 2011
KAZUNGU KITSAO THOYA......................................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 447 of 2011 of the Chief Magistrate's Court at Mombasa – Hon. Gandani- SPM)
JUDGMENT
The Appellant KAZUNGU KTSAO THOYA was charged Convicted and Sentenced to seventeen (17) years imprisonment for the offence of trafficking Narcotic drugs contrary to Section 4(a) of the Narcotic drugs and Psychotropic substances control Act.
The particulars are that :-
“On the 5th day of February, 2011 at Mariakani area of Kaloleni Kilifi County he trafficked in Narcotics drugs by storing 49 kilogrammes of Cannabis Sativa with a market value of Ksh. 98,000/= in contravention of the said act”.
The brief facts of this case are that police acting on information received preceded to the Appellants house at Mariakani on 5th February, 2011 at around 10:00 a.m. These were PC ABUDULAHI WAKO and PC SIGILAIof Nyali police station. Upon finding the Appellant outside his house they introduced themselves to him and proceeded to search the house which he confirmed to be his. They recovered in one of the three rooms of the house sacks containing dry plant material which they suspected to be bhang arrested the Accused and took him to Nyali police station. The Bhang was weighed in his presence and samples were taken to government chemist for analysis. The bhang was found to weigh 49 kilogrammes and was valued at Ksh. 98,000/-.
The grounds of appeal are that the charge was defective.
That the Conviction was against the weight of evidence adduced and that the Sentence was harsh.
A perusal of the charge sheet shows that he was charged with trafficking by way of storing.
“Storing” is one of the constituents of trafficking hence the charge is not defective.
The Appellant was found outside his house. He took the officers inside the said house where they found several sacks containing a dry plant material which was later confirmed to be Bhang. (Cannabis Sativa).
On the issue of Sentence. The appellant was fined Ksh. 294, 000/= being 3 times the value of the Bhang and to serve two (2) years imprisonment in default.
He was further Sentenced to fifteen (15) years imprisonment. Sentences were ordered to run consecutively.
The trial magistrate did note that the Act carries very stiff Sentences. That is correct. She also noted the rampant misuse of drugs in the Coast region.
Which is also a factor to be borne in mind while Sentencing.
I find no good grounds to interfere in both the Conviction and the Sentence. The Sentence was legal and proper.
The appeal has no merit and its disallowed.
Judgment delivered dated and signed this 31st day of March, 2014.
…...................
M. MUYA
JUDGE
31ST MARCH, 2014
In the presence of:-
State Counsel Miss Mwaura
The Appellant present
Court clerk Musundi