[2022] KEHC 18112 (KLR)

Moseti v Republic (Criminal Appeal E012 of 2022) [2022] KEHC 18112 (KLR) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 18112 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E012 of 2022

SM Githinji, J

June 20, 2022

Between

Alex Moseti

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence from the Original Mariakani Criminal Case No. E070 of 2022 in a Judgment delivered on 1st March, 2022 by Hon S.K.Ngii – Principal Magistrate)

Judgment

1. On February 9, 2022 the appellant was arraigned in the Principal Magistrate’s Court at Mariakani and charged with an offence of being in possession of Narcotic drug contrary to section 3 (1) (a) as read with section 3 (2) (a) of Narcotic Drug and Psychotropic Substance Control ActNo 4 of 1994.

2. The particulars of this offence are that on February 8, 2022 at Mwaroni Village Mariakani Location in Kaloleni Sub-County within Kilifi County of Coast Region, the appellant herein was found in possession of five and half sticks and four small rolls of narcotic drug namely bhang with street value of Kshs 1,220/= which was not in any form of medical preparations.

3. The charge was stated to the appellant in Swahili Language to which he responded that, “it’s true”. The court entered a plea of guilty as expected. However, the prosecutor did not state the facts as the report from government analyst was not ready. The matter was deferred to February 17, 2022. On that date the court Used both English and Swahili languages. The appellant indicated that he still maintained a plea of guilty to the charge. The prosecutor went ahead to state the facts as follows; -“On 8/2/2022 at 9. 30am, police officers from Mariakani Police Station were on patrol in Mariakani town when they got information from members of public that there was a house along the road where people were smoking bhang. They went to the house where they found four men seated thereat. They recovered a khaki bag which was hidden behind a T.V in the sitting room. The officers found 5 ½ big rolls (sticks) and 4 small rolls of substance suspected to be cannabis. They sought to know the owner of the house and the accused was introduced as the owner. He was arrested taken to the station. Later the substances were forwarded to government analyst and were confirmed vide report dated 14/2/2022 to be cannabis sativa; a narcotic drug. The (1) black bag, (2) 5 ½ stick of cannabis (3) 4 small rolls of cannabis (4) Exhibit memo dated 14/2/2022 and (5) Report dated 14/2/2022 were produced as exhibits 1 to 5 respectively;

4. The appellant pleaded to the facts and stated “Facts are correct.” The Court convicted him on his own plea of guilty. The prosecutor stated that she had no records. The appellant offered his mitigation on March 1, 2022 and stated; -“I pray for forgiveness. My mother depends on me and has no one to look after her.”The trial court considered the mitigation and expressed that the convict would be liable to imprisonment for 20 years but weighing the mitigation he was sentenced to serve 5 years imprisonment.

5. The appellant aggrieved by the said conviction and sentence appealed to this court on the grounds that; -1. The charge sheet is defective.2. The plea of guilty is un-equivocal.3. The read facts did not support the charge.4. The sentence meted is manifestly excessive, harsh and unjust.5. The facts did not prove that the appellant was in possession of the bhang.6. The nexus between ownership of the house and the offence was not considered.

6. The appeal was canvassed by way of written submissions. The appellant did not file his submissions but the state did. In this appeal I find that the issues for consideration as; -1. Whether the appellant having pleaded guilty he has a right of appeal.2. Whether the plea of guilty is un-equivocal.

7. On the first issue section 348 of theCriminal Procedure CodeCap 75 Laws of Kenya provides that; -“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except as to the extent or legality of the sentence.”

8. As rightly submitted by the prosecution, where the plea is properly taken in accordance to the law as provided under section 207 (1) and (2) of the Criminal Procedure Code, and as was expounded explicitly in the case of Adan-vs-Republic [1973] EA 445, to the extent where the court finds that the plea of guilty is unequivocal, the right to appeal against the conviction does not lie but only against the extent or legality of the sentence. In Olel-vs-Republic[1989] KLR 444, the Court held that; -“Where a plea is unequivocal, an appeal against conviction does not lie. Section 348 of the Criminal Procedure Code (Cap 75) does not merely limit the right of appeal in such cases but bars it completely.”

9. Ground two (2) of the appeal indicates that the plea entered was un-equivocal. It could have been so indicated mistakenly but looking at the proceedings as indicated all motions in plea taking were properly carried out by the trial court in a language which the appellant understood and well pleaded to, accepting the offence voluntarily. The charge indicates vividly that he had possession of cannabis sativa 5 ½ big rolls and 4 small rolls. They were recovered hidden in his house behind the Television set. The charge is not defective in any manner as alleged. The statement of the offence, section infringed, and the particulars are all in order. The appellant appeal should therefore have been limited to sentence only, having pleaded guilty to the offence.

10. On sentence the court expressed that the offence carries a sentence of 20 years imprisonment. However, given the plea of guilty and stated mitigation, the appellant was sentenced to 5 years imprisonment. The trial court in arriving at the said sentence did not take into account an irrelevant factor and nor was a wrong principle applied. The sentence is neither harsh, nor excessive given the circumstances. It’s lenient and reasonable. I find no sound ground which would entitle me to interfere with the same.The appeal lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 20TH DAY OF JUNE, 2023…………………………………………………S M GITHINJIJUDGEIn the Presence of; -The Appellant is absent.Ms Mutua for the StateMr Oburo holding brief for Mr Simuyu for the Appellant