[2013] KEHC 3214 (KLR)
The appellate court found that the trial magistrate did not properly address the distinction between trafficking and possession in the judgment. There was no evidence that the appellant was conveying the drugs to any particular place, nor was there evidence as to whether the drugs were for personal use or for sale....
Source-derived case information.
- Citation
- [2013] KEHC 3214 (KLR)
- Parties
- Appellant: Nabil Shabir Abed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 134 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed.
- Judges
- GO Shikwe
- Legal Topics
- Narcotic Drugs, Possession Offences, Trafficking Offences, Sentencing, Appeals, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nabil Shabir Abed
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted of trafficking in narcotic drugs contrary to the law.
- 2 Whether the trial court erred in failing to address whether the charge of trafficking should have been reduced to possession.
- 3 Whether the conviction on the second count for possession of Rohypnol was safe given the lack of evidence on its classification.
Ratio Decidendi
The appellate court found that the trial magistrate did not properly address the distinction between trafficking and possession in the judgment. There was no evidence that the appellant was conveying the drugs to any particular place, nor was there evidence as to whether the drugs were for personal use or for sale. The court held that the evidence supported a conviction for possession of narcotic drugs, not trafficking. Regarding the second count, the court found that the prosecution failed to prove what the tablets marked 'Rohypnol' were or their classification under the Act, rendering the conviction on that count unsafe. The conviction for possession under Section 3(1)(a) was upheld,...
Court Disposition
Appeal partially allowed.
Orders
- Conviction for possession of narcotic drugs under Section 3(1)(a) upheld.
- Sentence reduced from 17 years to 5 years imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 134 of 2011 [if gte mso 9]><xml>
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(From Original Conviction and Sentence in Criminal Case No. 398 of 2011 of the Chief Magistrate’s Court at Mombasa – R. Mutoka (CM))
NABIL SHABIR ABED ……………………….………….…. APPELLANT
- Versus -
REPUBLIC …………………………………………….… RESPONDENT
JUDGMENT
The Appellant was charged with two counts. The first one is that of trafficking in Narcotic Drugs contrary to Section 4(1) as read with Section 2(a) of the Narcotic and Psychotropic Substances Control Act NO. 4 of 1994.
In the second count he was charged with being in possession of Narcotic Drugs contrary to Section 3(1)(a) as read with Section 2(a) of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994.
In the first count he was alleged to have trafficked in Narcotic Drugs by way of conveyance to wit 215 rolls of cannabis sativa with a street value of Kshs. 33,250/- in contravention of the said Act.
In the 2nd count it is alleged that on the same day 30th January 2011 in Old Town Kibokoni he was found in possession of 4 tablets of Rohypnol with the street value of Kshs. 40/-.
Two police officers (PW1 and PW2) and the Chairman Community Policy Central Mombasa acting on information received proceeded to Marikiti area old town and to a flat whereby at the roof top they found the Accused holding a white polythene bag in one hand and a manila bag in the other hand.
Inside the polythene bag they recovered 125 rolls of cannabis sativa and in the manila one they recovered 90 rolls. A search conducted on the Accused revealed that in his rear right pocket of his trouser he had 4 tablets of a substance written “Rohypnol”. He was arrested and taken to police station where he was later charged with the two charges.
In his defence the Accused in his unsworn statement told the Court that he was arrested on 3rd November 2011 from his house at Marikiti area and taken to the roof top of his house where it was alleged that he was found in possession of bhang. He was later taken to police station and charged. In her judgment the trial Magistrate found that there was overwhelming evidence against the Accused person. She noted that the Accused person was found in possession of the Narcotic Drugs. She proceeded to find the Accused guilty as charged and convicted him accordingly.
She does not seem to have addressed her mind on the issue of trafficking on the 1st count and if she did she found the Accused guilty of possession but she did not state in her judgment whether she had reduced the charge of trafficking to the lesser one of possession.
On the first count the Accused is charged of trafficking by way of conveyance. There is no evidence to the effect that he was conveying the drugs to a particular place. It is alleged that he was found on the roof of his house. If it was on his house where was he conveying the drugs to?
No evidence was adduced as to whether the drugs were for his own consumption or for selling. I do find that the trial Court should have clearly indicated that she was convicting the Accused on the lesser offence of possession. This she did not but I do not think that it was fatal to the prosecution case.
On the second count the Court was not informed what the tablets with marks Rohypnol were and in what schedule of the Act they fall in. The conviction on the second count was not safe and the conviction is quashed. There does not seem to have been any sentence on it.
In respect of the 1st count upon evaluation of the evidence before the trial Magistrate I am satisfied that the lesser offence (charge of possession of Narcotic Drugs was proved).
The conviction for possession under Section 3(1)(a) is upheld. The sentence of 17 years imprisonment is reduced to 5 years from the time of conviction.
Judgment read and delivered in open Court this 30th day of May, 2013.
M. MUYA
JUDGE
In the presence of:-
Mr. Ayodo for the State
Appellant - present
Court clerk – Mr. Musundi
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