[2023] KEHC 25701 (KLR)
The High Court found that the trial court properly complied with the legal requirements for taking a plea of guilty, as established in Adan v Republic, and thus upheld the conviction on both counts. However, the court determined that the sentence of 20 years imprisonment for trafficking narcotic drugs was manifestly...
Source-derived case information.
- Citation
- [2023] KEHC 25701 (KLR)
- Parties
- Appellant: Daniel Charles Mchana alias Hassan Abdalla; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E037 of 2022
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; sentence for trafficking varied; other sentences and orders upheld.
- Judges
- GMA Dulu
- Legal Topics
- Narcotic Trafficking, Illegal Entry, Plea of Guilty, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Charles Mchana alias Hassan Abdalla
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty was properly taken and the conviction lawful.
- 2 Whether the sentence of 20 years imprisonment for trafficking narcotic drugs was excessive given the small quantity involved.
- 3 Whether the sentence for being illegally present in Kenya and the repatriation order were lawful.
Ratio Decidendi
The High Court found that the trial court properly complied with the legal requirements for taking a plea of guilty, as established in Adan v Republic, and thus upheld the conviction on both counts. However, the court determined that the sentence of 20 years imprisonment for trafficking narcotic drugs was manifestly excessive given the small quantity of bhang involved (worth Kshs. 4,550). The court exercised its discretion to reduce the sentence for trafficking to eight years imprisonment. The sentence for being illegally present in Kenya and the repatriation order were found to be lawful and were upheld. The appeal against conviction was dismissed, but the sentence for trafficking was...
Court Disposition
Appeal against conviction dismissed; sentence for trafficking varied; other sentences and orders upheld.
Orders
- The appeal against conviction is dismissed.
- The sentence of 20 years imprisonment for trafficking narcotic drugs is set aside and substituted with eight years imprisonment from the date of original sentencing.
Full Case Text
Judgment text and source record
26 paragraphs
Mchana v Republic (Criminal Appeal E037 of 2022) [2023] KEHC 25701 (KLR) (21 November 2023) (Judgment)
Neutral citation: [2023] KEHC 25701 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Appeal E037 of 2022
GMA Dulu, J
November 21, 2023
Between
Daniel Charles Mchana alias Hassan Abdalla
Appellant
and
Republic
Respondent
(From the conviction and sentence in Criminal Case No. E357 of 2022 at Voi Law Courts delivered on 6th June 2020 by Hon. C. K. Kithinji (PM))
Judgment
1. The appellant was convicted on his own plea on two counts.
2. Under count I he was convicted of trafficking narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 – the particulars of which being that on 2nd June 2022 at around 1445hours in Sofia area Voi Sub County within Taita Taveta County, was found trafficking narcotic drugs (bhang) by selling the said drugs to wit 13 rolls of street value Kshs. 4,550/= thereby contravening the said Act.
3. Under count II he was convicted of entering Kenya without a permit contrary to Section 34(1) as read with Section 53(i) (j) and 53(2) of the Kenya Citizenship and Immigration Act No. 12 of 2011, the particulars of which being that on 2nd June 2022 at Sofia area in Voi Sub County within Taita Taveta County, being a Tanzanian citizen was found unlawfully present in Kenya without a passport or permit.
4. He was imprisoned to 20 years for trafficking narcotic drugs and a fined Kshs. 20,000/= in default six (6) months imprisonment for being illegally present in Kenya, sentences to run consecutively, and also to be repatriated.
5. He has now appealed to this court against both conviction and sentence.
6. With regard to conviction I have perused the trial court record. In my view the court complied with the requirements for taking a plea of guilty as stated in the case of Adan =Vs= Republic (1973) EA 445. I thus dismiss the appeal against conviction as the charges were read to the appellant, he admitted the same, facts were summarised and he also agreed to the facts
7. With regard to sentence, in my view a quantity of bhang worth Kshs. 4,550/= is a small quantity and should not attract a sentence of 20 years imprisonment. In addition, the appellant stated in mitigation that he will not repeat the offence but the court erroneously stated that “accused is not remorseful”.
8. I will thus vary the sentence for trafficking and reduce it to eight (8) years imprisonment. The sentence for being illegally present in Kenya and the repatriation orders are lawful and I will retain the same.
9. Consequently, I dismiss the appeal against conviction and uphold the same.
10. As for the sentence, I set aside the sentence of 20 years imprisonment for trafficking narcotics and instead order that the appellant will serve eight (8) years imprisonment from the day he was sentenced by the trial court. The sentences for being illegally present in Kenya and repatriation orders are upheld.
DATED, SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER 2023 AT VOI.GEORGE DULUJUDGEIn the presence of:-Court Assistant – Alfred/TrizahMr. Sirima for StateAppellant