[2022] KEHC 14923 (KLR)

Njeru & another v Republic (Criminal Appeal E009 of 2022) [2022] KEHC 14923 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14923 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E009 of 2022

LM Njuguna, J

November 2, 2022

Between

James Kinya Njeru

1st Appellant

Dennis Munene Mbogo

2nd Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. .E. Wasike - PM in Siakago SPM Criminal Case No. 402 of 2018 delivered on 20. 01. 2022)

Judgment

1. The appellants herein were charged with the offence of being in possession of cannabis sativa contrary to Section 3(1) as read with Section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act no. 4 of 1994, the particulars were that on the June 28, 2018 at Gachoka, in Mbeere South Sub-county within Embu County, was found in possession of twenty two (22) rolls, twenty two (22) stones of cannabis sativa and 3 kgs of cannabis sativa which was not in its medicinal preparation form.

2. The appellants were arraigned in court on the June 25, 2018 and pleaded not guilty to the charge. The prosecution in support of their case called five (5) witnesses and at the close of their case, they were placed on their defence after the trial court found that they had a case to answer. Each of them gave sworn evidence but did not call any witnesses. In a judgment delivered on January 20, 2021, the learned magistrate found them guilty and convicted them and sentenced each of them to serve 6 years imprisonment.

3. Being dissatisfied with the sentence, they approached this court by way of a petition of appeal dated January 28, 2022 wherein they have set out four (4) grounds of appeal but the same is only on sentence, the only issue being that the sentence is harsh and excessive.

4. The appeal was disposed of by way of written submissions and both parties complied with the order on filing of submissions. This court has carefully considered the evidence on record, the submissions filed herein and has re-evaluated the evidence that was adduced before the trial court as it is expected of this court being the first appellate court and along the principles set out in the case of Okeno vs Republic.

5. I have noted that while sentencing, the learned magistrate stated that she considered the mitigation of the two (2) appellants, and that they are first offenders. She also noted that the offence committed by the appellants is grave and had a negative impact on the members of the public and particularly the youth, who are able to easily access the drugs due to the peddlers and traffickers thus affecting their health and mental status. In her opinion, a deterrent sentence is suitable noting the amount of cannabis involved. On that basis, she sentenced the appellants to six (6) years imprisonment each.

6. The appellants contend that the sentence imposed is harsh and excessive. They were both charged with the offence of being in possession of cannabis sativa contrary to Section 3(1) as read with Section 3(2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994.

7. Section 3(1) provides;Subject to sub-section (3) any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.

8. Section 3(2);A person guilty of an offence under sub-section (1) shall be liable –In respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption to imprisonment for ten (10) years and in every other case to imprisonment for twenty (20) years.The appellants herein were sentenced to serve six (6) years imprisonment which they submit is harsh and excessive.

9. The legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola s/o Owoura vs Reginum (1954/21270 as follows;The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by the trial judge unless, as was said in James vs Republic(1950) 18 EACA 147;“It is evident that the judge had acted upon some wrong principles or overlooked some material factors”.To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case; R vs Shershewky (1912) CCA 28 TLR 364”.

10. I have read the submissions by the appellants, they have not shown how the trial court erred in principle in imposing the sentence of six (6) years. It is trite that sentencing is at the discretion of the trial court unless it has been proved that the trial court did not exercise its discretion judiciously or it erred in principle.

11. Having considered the charge facing the appellants and the circumstances of the case, I find that the sentence imposed by the trial court is not harsh and/or excessive.

12. In the end, I find that the appeal has no merits and I hereby dismiss the same.

13. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE................................................for the Appellant…………………………………….for the Respondent