[2022] KEHC 16205 (KLR)

Kimani v Republic (Criminal Appeal E007 of 2021) [2022] KEHC 16205 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16205 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Appeal E007 of 2021

J Wakiaga, J

December 7, 2022

Between

Peter Runo Kimani

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence by Hon. I.W. Gichobi SRM in Kangema SPM Court Criminal Case No 493 of 2019)

Judgment

1. The appellant was charged with being in possession of Narcotic Drugs contrary to Section 3(1) as read with section3(2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act N 4 of 199, to which he pleaded not guilty and was tried convicted and sentenced to serve four (4) years imprisonment.

2. Being aggrieved by the said conviction and sentence he filed this appeal and raised the following grounds of appeal:a.The learned trial court erred in law and fact by failing to call for a probation report holding to the fact that the appellant was a first offender.b.The trial; court erred in law and fact in failing to call an independent witness except police officers.c.The learned trial magistrate erred in law and fact by failing to find that the prosecution had failed to prove its case beyond reasonable doubt.d.The learned trial magistrate erred in law and in fact that the evidential ingredients for the offence of being in possession of narcotic drugs(bhang) were not met by the prosecution.e.The learned magistrate erred in law and in fact by failing to find that the investigating officer as correctly stated relied on secondary evidence (hearsay) to convict the appellant, without any corroboration evidence of the scene of crime i.e. photographs showing where the accused had hidden or stored the narcotics.f.The learned magistrate erred in law and in fact by failing to consider the accused was a first offender and had no representation of an Advocate of his choice.g.The learned trial magistrate erred in law and in fact by failing to consider that the accused was not accorded opportunity to any witness during the trailh.The learned magistrate erred in law and in fact by considering extraneous matters/ facts that could not if left to stand alone could account for a conviction of the appellant.i.The learned magistrate erred in law and in facts by failing to appreciate that the standard of proving the guilt of the accused was set for the prosecution and the prosecution had failed to prove that the accused was a narcotic peddler or how it was recovered in purported home compound.

3. Directions were issued that the appeal be heard by way of written submissions and for the appellant it was submitted that the magistrate did not call for the probation report which was a crucial document in mitigation before convicting the appellant ad that the appellant would have known in advance of the intended sentence and with the said report he would have prepared and put further mitigation as was stated in the case of Denis Onyango Odhialo v R [2015]eKLR that failure to access the report in advance violated the appellants constitutional right that resulted into excessive and unjustified sentence.

4. It was contended that the witnesses who alleged that the appellant was selling bhang to the students were never called and the appellant having stated in his defence that the case was based on a lie because no one or chief or member of the Nyumba kumi was involved. It was stated that under section 111 of the Evidence Act, the appellant was only required to give a reasonable explanation of his possession of the goods and not beyond reasonable doubt.

5. It was submitted that the appellate court would interfere with the exercise of discretion if it is shown that the prosecution was influence by some oblique motive as was stated in the case of Julius Kalewa Mutungi v Republic Criminal Appeal No 31 of 2005 and that the court does not alter the sentence merely on the ground that it might have somewhat passed a different sentence as was stated in Macharia v Republic (2003) KLR 115.

6. It was submitted that in failing to call all the witnesses, the prosecution failed to prove its case beyond reasonable doubt as the issue of custody and control of the bhang by the accused person was not prove. It was contended further that the prosecution case was based on hearsay as defined in the case on Kinyatti v RCriminal Appeal no 60 of 1983 [1984] eKLR

7. It was contended that the appellant right to representation under Article 50(2) of the constitution was violated.

8. On behalf of the respondent, it was submitted that sentencing was at the discretion of the judicial officer and the fact that the same did not call for the probation report was not an error that can be visited upon the courts judgement. It was contended that the conviction of the appellant was based on credible and consistent evidence and that the evidence of an I dependent witness was not necessary as was stated in Margaret Wambui Kamau v Republic [2008] eKLR in support of the contention that no adverse inference is to be drawn from the fact that particular witness was not called by the prosecution.

9. It was contended that possession was proved through the evidence of PW1 who posed as a customer upon which the appellant entered his house and came out with the 1 kg of bhang which was then forwarded to the Government chemist and a report thereon produced in court. It was submitted that it was considered at the time of plea taking and that the appellant case did not fall within those that pro bono services is offered. On the issue of defence witnesses, the appellant indicated that he was not going to call any.

10. This being a first appeal, the court is under a duty to re-evaluate the evidence tendered before the trial court and to come to its own determination thereon, while giving an allowance that unlike the trial court it did not have the advantage of seeing and hearing witnesses as was stated in the case of Okeno V Republic

11. PW1 PC Charles Mbuthia Kariuki testified that they received information from an informer that the appellant was selling bhang to school going children and went to the home of the appellant and negotiated for the purchase upon which he was arrested as he tried to escape when the witness introduced himself as a police officer. In cross examination, he stated that he was with the informer and that the appellant collected the bhang from his house.

12. PW2 PC Emmanuel Kipkoech Kigen corroborated the evidence of PW1 that he posed as a buyer and the appellant brought the bhang packed in sachet and that PW1 told the appellant that he had forgotten the money ad went with him to where they were a, upon which they introduced themselves as police officers and tried to arrest him, he resisted and screamed. He was then identified by members of the public as a peddler to school going children. In cross examination he stated that the appellant was arrested at his gate when he went to collect money.

13. PW3 CPL David Chepkwany stated that upon the arrest of the appellant, he took the exhibits to the government chemist where upon examination, it was found to be cannabis. In cross examination he stated that the informer tipped the police officers on the activities of the appellant.

14. When put on his defence, he stated that the case was based on a lie that he was selling drugs to school children yet the respective headmasters of the said schools were not called as witnesses.

Determination 15. From the proceedings and the submissions herein, I have identified the following issues for determination on this appeala.Whether the prosecution case was proved beyond reasonable doubtb.Whether the sentence was lawful.

16. There are only two ingredients which the prosecuting is required to prove so as to sustain a conviction, that is possession and the fact that the substance possessed is listed under the Act.

17. Possession is defined in section4 of the penal code to include being in possession or having knowledge thereof as was stated in the case ofAhamed AbdibAbufaihi Mohamed & another v R [2018] eKLR

18. In Hussein v R [1980] KLR the court stated that the possessor must have such access to the physical control over the thing that he is in possession to deal with to the exclusive of others and in Francis Mbugua Mringera v R [2014] eKLR the court stated that there was no need for proof of occupation of the house

19. Applying the above principles to the evidence herein, it is clear that the appellant was arrested having come from his homestead with PW1 who had posed as a purchaser having acted on the information that the appellant was selling bhang to students, which evidence was corroborated by PW2 and the aid substance was examined and found to be with the listed substances under the Act. I therefore hold that the prosecution case was proved beyond reasonable doubt and the conviction was safe.

20. On sentence, the appellant only compliant is that the trial court should have called for pre-sentencing report. Sentencing remains at the discretion of the trial court and as rightly submitted by the appellant, an appellate court will only interfere with the same if the court acted on the wrong principles or overlooked some material factors or gave out a sentence which was excessive.

21. In this matter the penalty provided for under the Act is twenty (20) years whereas the appellant was sentenced to serve four (4) years which cannot be termed excessive taking into account the fact that the appellant was selling bhang t school going children. Since the prosecution did not apply for the same to be enhance, I shall not interfere with the trial court’s decision thereon save that the sentence shall run with effect from 5th September 2019 in line with the provisions of section 333(2) of the CPC

22. The upshot is that the appeal both on conviction and sentence is found to lack merit and is accordingly dismissed. The appellant has a right of appeal and it is ordered.

SIGNED DATED AND DELIVERED AT MURANGA THIS 7TH DAY OF DECEMBER, 2022. J. WAKIAGAJUDGEIn the presence ofCourt Assistant C MutahiMs Otieno for the StateAppellant in person