[2013] KEHC 2506 (KLR)
The court found that the prosecution failed to specify the manner in which the appellant was trafficking the drugs, as required by law. The charge sheet was silent on whether the appellant was distributing, conveying, or transporting the drugs. Additionally, the police witnesses did not clarify where the drugs were...
Source-derived case information.
- Citation
- [2013] KEHC 2506 (KLR)
- Parties
- Appellant: Kitsao Ali Kadenge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 304 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Narcotic Drug Offences, Trafficking Definition, Burden of Proof, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitsao Ali Kadenge
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of trafficking in narcotic drugs beyond reasonable doubt.
- 2 Whether the particulars of trafficking were sufficiently specified in the charge sheet.
- 3 Whether the value of the drugs was established for sentencing purposes.
Ratio Decidendi
The court found that the prosecution failed to specify the manner in which the appellant was trafficking the drugs, as required by law. The charge sheet was silent on whether the appellant was distributing, conveying, or transporting the drugs. Additionally, the police witnesses did not clarify where the drugs were found or whether they were in the appellant's possession. There was also no evidence presented regarding the value of the drugs, which is essential for sentencing in drug trafficking cases. Due to these evidentiary deficiencies, the conviction was deemed unsafe, and the appeal was allowed. The conviction was quashed and the sentence set aside, resulting in the appellant's...
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 304 OF 2010
KITSAO ALI KADENGE ….......................……....................…..APPELLANT
VERSUS
REPUBLIC ……….……......................................................…RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 880 of 2010 of the Chief Magistrate's Court at Mombasa – Hon. R. Kirui - PM)
JUDGMENT
The Appellant in this case was Convicted and Sentenced to ten (10) years imprisonment in addition to a fine of Ksh. 1 million in default two years imprisonment for the offence of trafficking in Narcotic drugs contrary to section 4(a) of the Narcotic Drug Act No. 4 of 1994.
The particulars are that on the 13th day of March, 2010 at Majaoni area of Bamburi Location Mombasa county he was found trafficking in Narcotic drugs to wit 84 rolls of Cannabis Sativa with a street value of Ksh. 930/= in contravention of the said Act.
Police constables Edward Simiyu and Francis Muturi Mbogo (PW 1 and PW 2 respectively) acting on information received proceeded to a house at Majaoni – Bamburi where they found the Appellant at a Veranda rolling Cannabis Sativa. They recovered 84 rolls of Cannabis Sativa.
The Accused in this case is charged with trafficking in Narcotic drugs. It is not shown in which manner he was trafficking the drugs in question, was he distributing, conveying and or transporting them.
The charge sheet is silent on the aspect of the manner of trafficking. The police witnesses also did not inform the Court where they found the 84 rolls of Cannabis Sativa. They did not indicate whether the rolls of Cannabis Sativa were found on the person of the Accused. Whether they were on the ground under a table, in the pockets or hidden under some bush.
Punishment in drug trafficking is predicated upon the value of the drugs. There was no evidence adduced at all as to the value of the drugs in question.
I find the Conviction of the Accused to be unsafe. His appeal succeeds, the Conviction is quashed and Sentence set aside. He is set at liberty unless otherwise lawfully held.
Judgment dated and delivered this 3rd day of September, 2013.
…............
M. MUYA
JUDGE
3RD SEPTEMBER, 2013
In the presence of:-
Learned State Counsel Miss Ogweno
The Appellant present
Court clerk Musundi