[2022] KEHC 15357 (KLR)

Kiplagat v Republic (Criminal Revision E209 of 2022) [2022] KEHC 15357 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15357 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E209 of 2022

RN Nyakundi, J

November 16, 2022

Between

Dennis Kiplagat

Applicant

and

Republic

Respondent

Ruling

1. The director of public prosecution lodged an application for review of sentence of a fine of ksh 5000/ in default six months imprisonment imposed by the learned trial magistrate. According to the letter dated 16/8/2022 the DPP is aggrieved as premised therein as follows;1. That the honourable courturgently call for the criminal case No.1202 of 2022 Republic v Dennis Kiplagat Eldoret Law Courts and examine the record of the proceedings herein as to the legality/procedurally or property of the sentence made by the said court on 20/7/2022. 2.That the honourable court be pleased to alter/or reverse the said Magistrate Court on 22/7/2022 sentencing the accused person to an illegal sentence of a fine of Ksh 5,000/= or 6 months in prison for the offence of Trafficking of Narcotics drugs contrary to section 4(a) of the Narcotics Drugs and Psychotropic Substance ControlAct No 4 of 1994. 3.Thatthe honourable court be pleased to confirm the proper sentence under section 4(a) to wit any person who traffics in any Narcotic Drugs or Psychotropic Substance or any substance represented or held court by him shall be liable in repeat of any Narcotic Drugs or Psychotropic Substance to a fine of one million or three times the market value whichever is greater and in addition to imprisonment for life.4. That the honourable courtto alter/or reverse the sentence meted by lower court on 22/7/22 sentencing the accused on court 2 to a fine of Ksh 5,000/= in default six months imprisonment and substitute with a proper sentence anchored in law under section 3(2) that in respect of cannabis to imprisonment for 10 years.5. Thatthe learned Magistrate erred both in law and fact by meting out an illegal sentence unknown to the law under both section 4(a) of the Narcotics Drugs and Psychotropic Substance ActNo 4 of 1994.

2. This was a trial in which the respondent pleaded guilty to the charges without the necessity of a full trial comprising of witnesses on the part of the prosecution. This being a revision court, it is also guided by the principles in Kiilu and anothervRep(2005) eKLR. The function involves scrutiny of the facts as a whole submitted to establish whether they support the findings and conclusions made by the plea court. In this respect I make the following observations. That the law under this provisions on trafficking of Narcotic drugs is settled as expressly stated in the case of Maldine Akoth BarazavRep (2007)eKLR in which the court of appeal held that the nature of the trafficking specified in section 2 of the act must be particularized in clear details. Secondly, the prosecution must resolve any of the conduct of the accused as charged was the purpose of trafficking. In addition, the facts or evidence against the accused must satisfy the criteria outlined in section 74(a) of the act. This provision sets out in detail the requirement of a designated analysist who shall take and weigh the samples of such narcotic seized from the suspect and subsequently accused of the offence. The taken away samples shall be analysed and identified within the requirements of the statute.

3. The major concern as deduced from the records there was non compliancy with the mandatory provisions of the act on seizure and weighing of the exhibited narcotics. In the case of Joshua Atula v Rep(2016) eKLR the government analyst report is mandatory to confirm whether the exhibits seized from the respondent were prohibited narcotic drugs as defined in law. It is from this background I find that the purported plea of guilty and subsequent verdict of sentence to be void ab initio as it relates to proof the element of the offence.

4. It is for these reasons that an order of Certiorari shall hereby issue to quash the proceedings and any further consequential orders against the respondent.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 16THDAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGE