[2022] KEHC 12091 (KLR)

Mwendwa v Republic (Criminal Appeal 104 of 2021) [2022] KEHC 12091 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12091 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal 104 of 2021

TW Cherere, J

June 9, 2022

Between

Purity Mwendwa

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentencing in Isiolo Criminal Case No. E198 of 2019 by Hon. E. Ngigi PM on 09th June 2021)

Judgment

1. Purity Mwendwa(appellant) was charged with trafficking in narcotic drugs contrary to section 4(a) of Narcotic Drugs and Psychotropic Substances Control ActNO 4 of 1994. The particulars of the charge were that;On the October 27, 2019 at around 0020 hours along Isiolo -Moyale road highway at Sabache area in Samburu East, Samburu County within Rift Valley Region was found trafficking in narcotic drugs namely cannabis sativa to wit approximately 10 Kgs which was not in medical preparation form.

Prosecution case 2. PW1 PC Erick Derick Odinga and PW2 PC Regina Lepuruiya testified that on October 27, 2019 at around 12:30am, they were on duty at Sabacha area where they had mounted a security check. That they stopped a PSV bus registration No KCH 841T that was being driven from Moyale and they ordered the passengers and stand next to their luggage. That upon searching appellant’s two gunny bags containing foodstuffs, they recovered from therein two bundles of approximately 5 kgs each of some plant material suspected to be bhang. Appellant was subsequently arrested and handed over to PW4 PC Erick Otieno the investigating officer who caused her to be charged.

3. The plant material was examined by PW3 Geoffrey Nyagaki Anyona a government analyst at Government chemist testified that on December 24, 2019 and he found that the plant material that weighed 8 kgs was cannabis. He tendered the exhibit memo form and report as PEXH 1 and 2 respectively.

Defence Case 4. In her sworn defence, appellant denied that the luggage from where the narcotics was recovered was hers.

5. The learned trial magistrate after analyzing the evidence and finding the prosecution case proved convicted and sentenced appellant to 10 years’ imprisonment.

6. Aggrieved by both the conviction and sentence, appellant filed a petition of appeal raising 10 grounds which she later collapsed into 5 in her submissions as follows;1)That the learned trial magistrate erred in both matters of law and fact by failing to notify the accused of her right to a fair trial.2)That the learned trial magistrate erred in both matters of law and fact by sentencing the appellant relying on contradicting and paradoxical evidence.3)ThaT the sentencing magistrate failed to give the appellant an option of a fine.4)That the learned trial magistrate erred in both matters of law and fact by failing to take into consideration the plausible defence of the appellants.5)That the sentencing magistrate failed to weigh the extenuating factors of the appellant in this case.

Submissions 7. The appellant vide submissions filed on May 9, 2022 submitted that the charge sheet was amended after two witnesses had testified and her right to recall the witnesses was not explained. She contended that the evidence by PW3 and PW4 was contradictory as to the officer that submitted the plant material samples to the Government chemists and faulted the trial court for disregarding her defence without any cogent reason and for imposing a sentence that was excessive. Appellant urged the court to subject the evidence fresh and exhaustive scrutiny and relied on Dinkarrhai Ramkrishan Pandya v Republic (1957) EA 336,

8. The state argued that appellant’s guilt on the charge of trafficking in narcotic drugs was proved to the required standard of proof, the sentence passed was legal and proper but conceded to a more lenient sentence to be meted out against her as first offender. The state relied onGabriel Kamau Njoroge v Republic [1982-88]1 KAR 1134 on the need for the court to re-evaluate the evidence afresh and Benard Kimani Gacheru v Republic [2002] eKLR for the proposition that court on appeal must be guarded when interfering with sentence unless it is manifestly excessive. In answer to the appellant’s contention that the prosecution case was contradiction, the state relied on Philip Nzaka Watu v Republic [2016] eKLR.

Analysis & Determination 9. The Court of Appeal in the case of Gabriel Kamau Njoroge v Republic [1987] eKLR described the role of the first Appellate Court on an appeal from the subordinate court in the following terms: -“….As this court has constantly explained, it is the duty of the first Appellate Court to remember that the parties to the court are entitled, as well on the question of fact as on the question of law to demand a decision of the court of the first appeal, and as the court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard from the witnesses and to make due allowance in this respect…..”.

10. I have considered the evidence on record, the grounds of appeal and submission for the appellants and for the state and deduced the following four issues for determination.

1. Whether Appellant was accorded a fair hearing 11. Section 214 of the Criminal Procedure Codeprovides for amendment of charges as follows:(1)Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:Provided that-(i)where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;(ii)where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.(2)Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.(3)Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.”

12. The above section gives the court a wide discretion to amend the charge sheet upon an application. Of course, the said discretion must be exercised judiciously. In the instant case, when the prosecution made an application for amendment of the charge on February 25, 2021, Appellant stated that she had no objection. Upon the amendment being made, the charge was read out to the appellant to Kiswahili in which she denied the charge. Subsequently, appellant upon being asked if she wished to recall any witness replied that she did not.

13. From the foregoing, I find that the learned trial magistrate applied the law on amendment of charge as correctly and thereby gave appellant a fair hearing.

2. Whether there were material contradictions in the evidence adduced by the prosecution witnesses at trial. 14. In the case of Philip Nzaka Watu v Republic [supra], the Court of Appeal held that discrepancies must be expected because human recollection is not infallible and no two people can perceive the same phenomena exactly the same way. The discrepancy pointed out by the appellant concerning submission of the samples of the plant material in issue was resolved by the exhibit memo form PEXH 2 which demonstrates that it was PC Rukwaro that escorted the exhibits to Government chemists.

15. Be as it may, the discrepancy was minor and did not materially affect the substance of the evidence that indeed exhibits were taken to the Government chemists and examined. The trial magistrate’s finding that appellant was not prejudiced was therefore well founded.

3. Whether the prosecution case was proved 16. Evidence by PW1 PC Erick Derick Odinga and PW2 PC Regina Lepuruiya concerning the recovery of the exhibits is that each passenger in the PSV bus registration no. KCH 841T was requested to identify their luggage and it was for the luggage identified by the appellant that the that cannabis was recovered.

17. Appellant was given an opportunity to cross-examine the said two witnesses and she said she had no question. Appellant cannot therefore be heard to say that she did not identify the luggage as hers having waived her right to test the prosecution case at the trial. Consequently, I find that the learned trial magistrate correctly found that the prosecution case that appellant trafficked narcotics by conveying was proved to the required standard.

4. Whether sentence meted out was excessive* 18. Section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Actstates:-4. Penalty for trafficking in narcotic drugs, etc.Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—(a)in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life”

19. I have considered the case of Caroline Auma Majabu v Republic [2014] eKLR, where the Court of Appeal stated that the sentence provided for trafficking is the maximum intended for drug barons and serious drug dealers with drugs worth thousands if not millions of shillings, and not small timers such as the appellant herein.

20. I associate myself with the holding of the court that while we do not encourage small time trafficking in drugs, we are of the view that the sentences imposed in such cases should be realistic and should aim at rehabilitation rather than incarcerating and completely destroying the offenders

21. I have considered the appellant’s mitigation and the fact that she is a first offender and find it in her favour to interfere with the sentence.

22. It is therefore hereby ordered:1)The conviction is upheld2)The 10-year sentence is substituted with two (2) years imprisonment from date of conviction on June 9, 2021

DELIVERED AT MERU THIS09TH DAY OF JUNE, 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - PresentFor the State - Ms. Mwaniki (PPC)