[2025] KEHC 2863 (KLR)

Ndungu v Republic (Criminal Appeal E062 of 2023) [2025] KEHC 2863 (KLR) (12 March 2025) (Judgment)

Neutral citation: [2025] KEHC 2863 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal E062 of 2023

M Muya, J

March 12, 2025

Between

Dennis Ndungu

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein Dennis Ndungu Mugure was charged with the offence of trafficking of Narcotic drugs contrary to Section 4(a) (ii) of the Narcotics Drugs and Psychotropic Substances (Control) (Amended) Act no. 4 of 2022.

2. The particulars being that on the 28th day of January, 2023 at about 2100 hours at Witemere area in Nyeri Central sub-county within Nyeri County, they were found manufacturing narcotic drugs namely cannabis sativa by use of one rolling flag eight packets of rizla papers, a pair of scissors and storing the said narcotic drugs weighing 324 grams and 63 rolls with a street value of Kshs.19,330/- which was not in the form of medical preparation contrary to the law.

3. The Appellant had been charged alongside six other to-accused in the lower court. Three of the seven co-accused pleaded guilty to the charges. The Appellant and the rest pleaded not guilty and the case proceeded to full trial.

4. The prosecution called a total of 4 witnesses. Upon being found guilty they were sentenced to five years imprisonment.

5. The grounds of appeal were particularized and summarized thus:-1. That the trial magistrate erred in law and in fact by convicting the appellant based on inconsistent, uncorroborated and contradictory evidence.2. That the learned trial magistrate erred in law and in fact by failing to recognize that the prosecution did not establish the ownership of the house in question, nor did they identify the individual who owned the recovered drugs.

6. It is the duty of the appellate court to evaluate and analyze afresh he evidence adduced before the trial court so as to arrive at its own conclusions. In so doing the appellate court bears in mind that it did not have the opportunity of observing the demeanor of the witnesses R Vs Aoko 1972 ELR.

Brief Facts: 7. On the 25th day of January, 2023, PW1, PW2 and police officers from Central Police Station were on patrol duties when they received information that there were people suspected to be trafficking drugs at a house at Witemere are of Nyeri town.

8. They were directed to the house and proceeded there at around 9. 30 p.m. Upon arrival they saw some individuals outside who upon seeing them they ran away. Police upon entering the house, they found seven men inside. A search was conducted in the one roomed house and they recovered:-i.One rolling flag (Prosecution exhibit no. 1)ii.8 packets of Rizla papers (PExhibit no. 2)iii.Pair of scissors (PExhibit no. 3)iv.324 grams of bhang (PExhibit no. 4)v.63 rolls of bhang (PExhibit no. 5) which were in a gray basin. Also collected in the house was a battery, two motor cycles and a roll of barbed wire.

9. An inventory was prepared and signed. An exhibit memo was prepared ant the items taken to government chemist for examination.

10. A government chemist report (PExhibit no. 7) was prepared and produced in court, which showed that the plant material received in the form of leaves and seeds was cannabis sativa.

11. The court was informed that the item seized were those used in the preparation of bhang.

12. The Appellant was charged with the offence of trafficking in narcotic drugs contrary to Section 4(a)(ii) of the Narcotics Drugs and Psychotropic Substances (Control)(Amended) Act no. 4 of 2022 which provides:-“Any person who traffics in, or has in his or her possession any Narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug, or psychotropic substance shall be guilty of an offence and liable (a) in respect of any narcotic drug or substance.....i.Where the person is in possession of between 1 – 100 grams, to a fine of not less than thirty million shillings or imprisonment for a term of thirty years or to both such fine and imprisonment;ii.Where the person is in possession of more than 100 grams, to a fine of not less than fifty million shillings or three times, the market value of the narcotic drug, or psychotropic substance whichever is greater or to imprisonment for a term of fifty years, or to both such fine and imprisonment”

13. A perusal of the record of proceedings and in particular the fact that the prosecution had treated the accused persons as first offenders. They were represented by Counsel Mr. Wabandi who in mitigation asked the court for a lenient sentence and to consider a fine or non-custodial sentence. The court did note that it did consider the mitigation by the accused and fined each of them 2 million shillings in default to serve five years imprisonment.

14. It is therefore, patently clear the appellant was allowed to mitigate through his counsel Mr. Wabandi and did mitigate.

15. Secondly, his mitigation was duly considered during sentencing.

16. The appellant contends that the sentence was harsh and excessive.

17. Together with other (six in number) he was found in possession of trafficking more than 100 grams of cannabis sativa. The minimum sentence is to a fine of not less than fifty million shillings or three times the market value, or to imprisonment for a term of fifty years, or both such fine and imprisonment.

18. The fine of Kshs.2 million in default 5 years imprisonment was not harsh nor was it excessive.

19. The other ground for appeal is that the evidence adduced in court was inconsistent, uncorroborated and contradictory. During the appeal and in the submissions before the court, it is not shown what was inconsistent, contradictory and uncorroborated.

20. The learned trial magistrate on page 57 of his judgment found that the arresting officers did give consistent evidence on how they found the appellant in the company of other six in a one roomed house. He was of the view that PW1 and PW2’s evidence did corroborate each other in all material particulars.

21. The last ground of appeal is that the ownership of the house where the bhang was allegedly found was not proved.

22. It is instructive to note that all the accused persons denied having been found in the house alleged to have contained the bhang and other paraphernalia. The prosecution witnesses did testify that the house in question was a one roomed structure made of iron sheets and timber and fenced. The learned trail magistrate found no good reason to doubt the evidence of the two arresting officers.

23. Upon a careful analysis of the evidence on record, I find there was overwhelming evidence to find the appellant guilty of the offence of trafficking as charged.

24. I find no good reason to interfere with the conviction and sentence. The appeal is without merit and it is disallowed.

JUDGEMENT READ AND DELIVERED IN OPEN COURT THIS 12TH DAY OF MARCH, 2025. .................................M. MUYAJUDGEIn the presence of:-Prosecution Counsel – Miss KaniuThe appellant in personRight of appeal 14 days.