[2018] KEHC 7335 (KLR)
The court found that the charges in counts 1 and 2 were fatally defective: count 1 improperly charged the appellant under both section 4(a) and 4(b) of the Narcotic Drugs and Psychotropic Substances (Control) Act, which are alternative and not conjunctive provisions, while count 2 cited section 3, which addresses...
Source-derived case information.
- Citation
- [2018] KEHC 7335 (KLR)
- Parties
- Appellant: Milka Waitaga Ndung'u; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in its entirety for counts 1 and 2; appeal on sentence allowed for count 3.
- Judges
- DW Mbuteti
- Legal Topics
- Narcotic Drug Offences, Defective Charge Sheet, Sentencing Errors, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milka Waitaga Ndung'u
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charges in counts 1 and 2 were incurably defective and could sustain a conviction.
- 2 Whether the sentence imposed for count 3 was lawful under the Penal Code.
Ratio Decidendi
The court found that the charges in counts 1 and 2 were fatally defective: count 1 improperly charged the appellant under both section 4(a) and 4(b) of the Narcotic Drugs and Psychotropic Substances (Control) Act, which are alternative and not conjunctive provisions, while count 2 cited section 3, which addresses possession rather than cultivation, the latter being covered under section 6. As a result, the convictions on these counts could not stand and were quashed. Regarding count 3, although the conviction for selling a sniffing tobacco product was proper, the default custodial sentence of six months for non-payment of a KShs 10,000 fine exceeded the statutory maximum of three months...
Court Disposition
Appeal allowed in its entirety for counts 1 and 2; appeal on sentence allowed for count 3.
Orders
- Convictions and sentences in counts 1 and 2 quashed and set aside.
- Conviction in count 3 upheld; default sentence reduced to three months imprisonment in accordance with section 28(2) of the Penal Code.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT OF KENYA
AT MURANG’A
CRIMINAL APPEAL NO 84 OF 2016
(Appeal from original Conviction and Sentence in Kigumo SPM Criminal Case No 854 of 2015 – A Mwangi, SRM)
MILKA WAITAGA NDUNGU.........................APPELLANT
VERSUS
REPUBLIC.....................................................RESPONDENT
J U D G M E N T
1. The Appellant, Milka Waitaga Ndung’u, was convicted upon her own plea of three offences as follows –
Count 1: Trafficking in narcotic drugs contrary to section 4(a) and (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No 4 of 1994.
Count 2: Cultivating bhang contrary to section 3(1) (a) as read with sub-section (2) (a) of the same Act No 4 of 1994.
Count 3: Selling sniffing tobacco product contrary to section 21(1) of the Tobacco Control Act, 2007.
2. For each of counts 1 and 2 the Appellant was fined KShs 100,000/00 and in default of payment to serve 2 years imprisonment. For count 3 she was fined KShs 10,000/00 and in default to serve six(6) months imprisonment.
3. The Appellant appealed against sentence only; that notwithstanding, the court has had to look at the convictions as well.
4. In count 1 the Appellant was charged under both section 4(a) and section 4(b) of the Act. This was wrong as the paragraphs are alternative to each other and not conjunctive. The use of the word “or” after paragraph (a) clearly indicates this. Charging the Appellant under both paragraphs rendered the charge in respect to that count incurably defective, and the Appellant’s conviction thereof cannot be sustained and must be quashed.
5. As for count 2, section 3 of the Act is about possession, not cultivation; cultivation is prohibited under section 6 of the Act. The charge in count 2 was also thus fatally defective. The conviction therefor must also be set aside.
6. The Appellant was properly convicted in count 3. However, the default sentence of 6 months imprisonment was clearly unlawful. Under section 28(2) of the Penal Code, the default sentence for KShs 10,000/00 fine is 3 months imprisonment.
7. It was for the above reasons that on 11/07/2017 I allowed the Appellant’s appeal in its entirety in respect to counts 1 and 2, and also allowed her appeal in respect to sentence in count 3.
DATED AND SIGNED AT MURANG’A THIS 19TH DAY OF APRIL 2018
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 20TH DAY OF APRIL 2018