[2006] KEHC 3363 (KLR)
The court found that the appellant's plea was unequivocal, as the charge was read in English and translated into Kiswahili, and the appellant admitted the facts. The conviction was therefore proper. However, the sentence imposed was excessive given that the appellant was a first offender, the value of the drugs was...
Source-derived case information.
- Citation
- [2006] KEHC 3363 (KLR)
- Parties
- Appellant: Kennedy Machuka Motoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 142 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Judges
- K Bauni
- Legal Topics
- Narcotic Drugs Offences, Plea Taking, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Machuka Motoki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's plea of guilty was unequivocal and properly taken.
- 2 Whether the sentence imposed was excessive in the circumstances.
Ratio Decidendi
The court found that the appellant's plea was unequivocal, as the charge was read in English and translated into Kiswahili, and the appellant admitted the facts. The conviction was therefore proper. However, the sentence imposed was excessive given that the appellant was a first offender, the value of the drugs was not substantial, and there was no evidence of habitual trafficking. The court exercised its discretion to reduce the custodial sentence to five years, to run concurrently, while upholding the fine as proper under the law.
Court Disposition
appeal_partially_allowed
Orders
- The jail terms of 10 years and 15 years are set aside and each reduced to a term of 5 years to run concurrently from the date of conviction.
- The fine of KES 500,000 is upheld.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Criminal Appeal 142 of 2005
KENNEDY MACHUKA MOTOKI …...……………….. APPELLANT
VERSUS
REPUBLIC ………………..………………………… RESPONDENT
(From original conviction and sentence in Criminal Case No.1241 of 2005of the Senior Resident Magistrate’s Court at Narok – S. N. GITHENJI ESQ.S.R.M)
JUDGMENT
Appellant was charged with offence of Trafficking in Narcotic Drugs contrary to S.4(a) of the Narcotic Drugs and Physchotrophic substances Act in that on 5th October 2005 at 11 a.m. at Siyapei Police road block along Narok/Maimahiu road, trafficked in a narcotic drug namely cannibas sativa to wit 86 stones worth shs.43,000/= in bus Reg. No.KAQ 622B.
He was convicted on his own plea and fined shs.500,000/= as well as to serve 10 years. Court also ordered that he serve 15 years imprisonment if he failed to pay fine. He has appealed both against conviction and sentence.
In his first ground of appeal appellant states that court failed to have the charge read and explained to him in a manner and language he understood.
However this is not what is revealed from the proceedings that the plea was properly taken and it was unequivocal. The appellant in the appeal does not state which language he understands well. However recordings show that the charge was read to him in English and translated into Kiswahili after which he stated:
“It is true”
After that facts were read to him and he again answered:
“The facts are correct and true”
After that a plea of guilty was entered against him. In his mitigation he clearly admitted that he was given the bhang and he knew what it was only he said that he was misled. It is clear therefore he understood both the charge and the facts read to him. The conviction therefore was proper.
As regards sentence Section 4(a) of The Act is very clear.
The maximum fine is 1 million shillings and life imprisonment, jail sentence is additional to the fine. Thus the fine of shs.500,000/= was proper.
However the court should have not been too harsh in awarding the jail term. The exact value of the drugs was not given when the facts were being read, though the particulars in the charge sheet show the value as shs.43,000/=. Appellant was a first offender and there was no indication that he was a regular trafficker. He pleaded for leniency and said he was misled.
Though the charge was serious the court should have been more lenient.
In the circumstances I allow the appeal to the extent that the jail terms of 10 years and 15 years respectively are set aside and each reduced to a term of 5 years to run concurrently from the date of conviction.
It is so ordered.
Dated 12th October 2006
KABURU BAUNI
JUDGE
cc. Mobisa
Mr. Chirchir for state.
Appellant P.I.P