[2013] KEHC 2721 (KLR)
The High Court found that the trial magistrate failed to consider relevant mitigating factors, including the appellant's status as a first offender, the small quantity and low value of the narcotic, and the guilty plea entered before trial. The imposition of the maximum sentence of 10 years imprisonment was deemed...
Source-derived case information.
- Citation
- [2013] KEHC 2721 (KLR)
- Parties
- Appellant: Nicholas Njuguna Karanja; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1143 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- MJA Emukule
- Legal Topics
- Sentencing Principles, Possession of Narcotics, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nicholas Njuguna Karanja
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for possession of 10 grammes of cannabis sativa was excessive and justified in the circumstances.
- 2 Whether the trial court failed to consider relevant mitigating factors in sentencing the appellant.
Ratio Decidendi
The High Court found that the trial magistrate failed to consider relevant mitigating factors, including the appellant's status as a first offender, the small quantity and low value of the narcotic, and the guilty plea entered before trial. The imposition of the maximum sentence of 10 years imprisonment was deemed excessive and not commensurate with the offence. The appellate court held that a more lenient sentence was appropriate in the circumstances and substituted the 10-year sentence with a 2-year term of imprisonment.
Court Disposition
appeal_allowed_in_part
Orders
- The appeal on sentence is allowed.
- The sentence of 10 years imprisonment imposed by the trial court is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
Criminal Appeal 1143 of 2011 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
(From original conviction and sentence in Criminal Case No. 2125 of 2011 of the Chief Magistrate's Court at Nakuru, W. Juma (C. M.)
NICHOLAS NJUGUNA KARANJA...................................................APPELLANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
JUDGMENT
The Appellant was charged with the offence of being in possession of cannabis sativa contrary to section 3(1) as read together with section 3(2) (b) of the Narcotic and Psychotropic Substances Control Act No. 4 of 1994. The particulars were that on 16th June 2011 at Mau-Narok in Njoro District within Rift Valley Province, the Appellant was found in possession of 10 grammes of Cannabis Sativa (Bhang) valued at Kshs. 50/=. The Appellant pleaded guilty and was sentenced to 10 years imprisonment.
Aggrieved with his sentence, the Appellant came to this court on a Petition of Appeal filed on 1/2/2011 wherein he erroneously stated that he wished to appeal against the sentence passed for the offence of robbery with violence.The Appellant was charged and convicted of the offence of being in possession of cannabis sativa not robbery with violence. The grounds of appeal which amounted to no more than pleas of mitigation, are-
(1)that he was a first offender,
(2)that he is the sole provider for his wife and two children,
(3)that he is an orphan,
(4)that he is remourseful for the acts which he owns up and promises not to repeat the same again,
(5)that he pleaded not guilty to the charge and this ought to be taken into account.
Ms. Idagwa for the state submitted that sentencing is a matter of discretion of the trial court and the section under which the Appellant was sentenced provides that the offender shall be liable to imprisonment for up to 10 years. She further submitted that the bhang was not for sale.
I have considered the grounds of appeal. Sentencing is essentially at the discretion of the trial court. An appellate court will be slow to interfere with the exercise of that discretion unless it is shown that the sentencing court took into account an irrelevant factor, that it failed to take into account a relevant factor, it applied a wrong principle or that the sentence is harsh and excessive that an error in principle must be inferred. (See Charo Ngumbao Gugudu V Republic [2011] eKLR). The court also held that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged.
The Appellant was a first offender and was found with 10 grammes of bhang worth Kshs. 50/=. He pleaded guilty before the trial commenced and he therefore did not waste court's time. In my humble view, the learned magistrate did not take into account the above relevant factors because had she done so, then she would have meted a more lenient sentence other than the maximum 10 years imprisonment. I find that the sentence of 10 years was excessive in the circumstances and it was not commensurate to the offence.
Consequently, I would allow the appeal on sentence. I would set aside the sentence of 10 years imprisonment imposed by the trial court and substitute it with 2 years imprisonment.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 10th day of May, 2013
M.J. ANYARA EMUKULE
JUDGE
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; text-autospace:ideograph-other; font-size:12. 0pt;"Liberation Serif","serif";} </style> <![endif]