[2001] KEHC 879 (KLR)
The High Court found that while the sentence of 10 years imprisonment for possession of bhang was lawful under the relevant statute, it was excessive given the appellant's status as a first offender and the circumstances of the case. The court noted that the appellant had lied in mitigation about his family...
Source-derived case information.
- Citation
- [2001] KEHC 879 (KLR)
- Parties
- Appellant: Nicholas Musyimi Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 146 of ??
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal dismissed as to conviction; sentence reduced to five years imprisonment.
- Legal Topics
- Narcotic Drugs Possession, Sentencing Principles, Plea of Guilty, Mitigation, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Musyimi Mutua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for possession of bhang was excessive for a first offender.
- 2 Whether the plea of guilty was properly taken and the conviction was sound.
Ratio Decidendi
The High Court found that while the sentence of 10 years imprisonment for possession of bhang was lawful under the relevant statute, it was excessive given the appellant's status as a first offender and the circumstances of the case. The court noted that the appellant had lied in mitigation about his family responsibilities, but this did not justify the severity of the sentence. The interests of justice would be served by reducing the sentence to five years. The conviction was upheld as the plea of guilty was properly taken and there was no fault in the proceedings. The appeal was therefore allowed only to the extent of reducing the sentence, with the conviction remaining undisturbed.
Court Disposition
Appeal dismissed as to conviction; sentence reduced to five years imprisonment.
Orders
- The sentence of 10 years imprisonment is set aside and substituted with a sentence of five years imprisonment.
- Save for the reduction of sentence, the appeal is dismissed.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS APPELLATE SIDE CRIMINAL APPEAL NO. 146 OF 2000 (From Original Conviction and Sentence in Criminal Case No. 2985 of 2000 of the Senior Principal Magistrate’s Court at Machakos: S.M.S. Soita Esq. on 11. 10. 2000) NICHOLAS MUSYIMI MUTUA :::::::::::::::::::::::::::::: APPELLANT VERSUS REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT Coram: J. W. Mwera J. Appellant not wishing to be present Orinda State Counsel for Respondent C.C. Muli ******************** J U D G E M E N T
The appellant pleaded guilty to possessing bhang C/s 3(1) as read with S.3(2) (a) of the Narcotic Drugs Act No.4/94. That this was on 14. 9.2000 at Miu Market, Machakos which bhang was not in medical preparation.
The facts reproduced showed that 70 rolls of bhang were found in the rented room used by the appellant. It was not in medicinal preparation. His appeal was on sentence.
In this otherwise regularly taken plea of guilty the appellant was treated as a first offender. In mitigation he told the Learned Trial Magistrate that he sold bhang but he did not know that that was bad (illegal?) The Learned Trial Magistrate required a probation report but it turned out to be unfavourable. Apparently the appellant had said in mitigation that his mother had left small kids in his custody and care which was not true. He got 10 years imprisonment.
The Learned State Counsel observed that the sentence was on the higher side. The conviction was not faulted. This court is of the view that the sentence though lawful and the appellant, a first offender told lies to the Learned Trial Magistrate as to his family responsibilities, still it is on the higher side. Interests of justice shall still be served if and that sentence is set aside and substituted with one of five (5) year. Save for the reduction of the sentence, this appeal is dismissed.
Judgement accordingly. Delivered on 25th June 2001. J. W. MWERA JUDGE