[2022] KEHC 14146 (KLR)

Ofilo & 3 others v Republic (Criminal Appeal 42, 45, 46 & 49 of 2020 (Consolidated)) [2022] KEHC 14146 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14146 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 42, 45, 46 & 49 of 2020 (Consolidated)

SN Riechi, J

October 5, 2022

Between

Josephat Ochieng Ofilo

1st Appellant

Fredrick Oduor Oloo

2nd Appellant

Ezekiel Mbwani Ndungu

3rd Appellant

Joseph Wafula Wamalwa

4th Appellant

and

Republic

Respondent

(An appeal arising from the conviction and sentence by Hon G.P Omondi(S.R.M) in original Bungoma Criminal Case No. 173/2020 delivered on 27/2/2020)

Judgment

1. The appellants were jointly charged with the offence of trafficking in narcotics contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994. The facts were that on the January 31, 2020 at about 2000hrs at Serena area within Bungoma Township Bungoma South Subcounty in Bungoma County, jointly trafficked by storing in a house a narcotic drug namely cannabis sativa to wit 31 kilogrammes with a street value of Kshs 930,000/- in contravention of the said Act.

2. They faced another count of dealing with alcoholic drinks without licence contrary to section 7(1)(b) as read with section 62 of the Alcoholic Drinks Control Act No 4 of 2010. The facts were that on the January 31, 2020 at 2000 hours at Serena area in Bungoma south sub county within Bungoma County were found dealing in alcoholic drinks without a licence to wit 15 litres of changaa in contravention of the Act.

3. Upon arraignment on July 3, 2020, they indicated that they understood Kiswahili language and the charges were therefore read out to them in that language whereupon they answered‘ni ukweli’ denoting that the same was true.

4. The court subsequently entered a plea of guilty against all the appellants. The facts were then read out where upon being called to respond, the record indicates that they indicated the facts to be correct.

5. After tendering their mitigation, the first appellant was sentenced to pay a fine of Kshs 500,000/- or serve 15 years imprisonment in count I and a fine of Kshs 20,000/- or 6 months imprisonment in default in respect of count II, the second, third and fourth appellants were each fined Kshs 250,000/- or serve 8 years imprisonment in respect of count I and a fine of Kshs 10,000/-or 3 months imprisonment in default in count II.

6. The appellants being dissatisfied appealed to this court on grounds which can be summarized as hereunder ; -1. That they are first time offenders.2. That they are young and imprisonment may deteriorate their future.3. That they pleaded guilty to the charges.4. That they are remorseful.

7. The appeal was disposed of by way of written submissions. All the parties complied and the same is on record. The court has given due consideration to the same. In addition to the written submissions, the respondent filed notice of enhancement of sentence contending that the sentence meted out contravened the provisions of the Narcotic Drugs and Psychotropic Substance (Control) Act which prescribes a fine of Kshs 1 million or three times the market value of the drug whichever is greater and life imprisonment.

8. Having carefully considered the record in the subordinate court as well as the grounds of appeal alongside the submissions, the court is therefore called upon to ascertain the propriety of the plea, that is; whether the plea was equivocal or not and the issue of sentence.

9. This is a first appeal and the duty of the court is as was stated in Kiilu & Another vs Republic (2005) 1 KLR 174, where the duty was stated thus;An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.

10. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.

11. It is not in doubt that the appellants pleaded guilty to the charges and the applicable legal provisions are found in section 348 of the Criminal Procedure Code which provides;No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

12. The section limits the court’s inquiry into the propriety and or legality of the sentence meted out unless it can be established that the plea was equivocal. The procedure of such inquiry was stated in the often-cited case of Adan v Republic (1973) 1 EA 445where it was held;i.the charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;ii.the accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;iii.the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;iv.if the accused does not agree the facts or raises any question of his guilt his reply must be recorded and change of plea entered;v.if there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.

13. The court has scrupulously examined the record and shows that the language used during plea taking was Kiswahili whereupon they all answered in the affirmative, that is; ‘Ni ukweli’. The record of February 13, 2020 shows that the prosecutor indicated to the court that the appellants had appeared before another court and indicated their wish to change plea. In response, they stated that they maintained their earlier plea of guilty.

14. The facts were then read out to them and the appellants still maintained the truthfulness of the same, the exhibits were produced into evidence without objection from them. regarding the importance of reading out facts, the Court of Appeal inObedi Kilonzo Kevevo - v - Republic (2015) eKLR, held: -The importance of statement of facts is that it enables the trial court to satisfy itself that the plea of guilty was really unequivocal and that the accused understood the facts to which he was pleading guilty and has no defence. The facts as read to the accused must disclose the offence. A plea is considered unequivocal if the charge is read to an accused person and he pleads guilty, thereafter, the facts are narrated to the accused person and he/she is once more asked to respond to the facts. It is important that both the statement of offence as contained in the charge sheet as well the facts as narrated by the prosecution must each disclose an offence. Otherwise, the plea is not unequivocal.

15. After careful scrutiny of the record, I am satisfied that the laid down procedure as established by law was followed mainly for the reason that the language used was Kiswahili, a language well understood by the appellants and the indication that they had intended to change plea. The conviction thus entered into was proper and accorded with the law.

16. On the sentence meted out, I have reproduced the sentence handed down on each appellant earlier in this judgement save that the learned trial magistrate ordered the sentences to run consecutively against each of them.

17. It is well established principle following several decisions that sentencing is a matter of judicial discretion as was held in Bernard Kimani Gacheru vs. Republic (2002) eKLR where it was stated-It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.

18. The record shows that before handing down the sentence, the trial magistrate indeed called for and took into account the probation officer’s report together with the mitigation tendered by the appellants where they all sought forgiveness. Of all the appellants, the 1st appellant had previous conviction thus the different sentence from the other appellants.Section 4(a) of the Act sates;Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—(a)in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;

19. On the other hand, section 62 of the Alcoholic Drinks Control Act gives the general penalty and provides;Any person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

20. The trial magistrate’s sentencing was based on the decisional authority in Francis Karioko Muruatetu & another vs Republic (2017)eKLR which position has since altered the position then obtaining following the issue of directions by the Supreme Court in 2021 to effect that the authority was only applicable to cases falling under section 203 and 204 of the Penal Code which is not the case here.

21. The court finds and holds that the sentence meted out was lenient in the circumstances. However, taking note that sentencing is a discretionary exercise vested in the trial court and taking into account the sentencing policy guidelines and the objectives intended to be achieved therein, the court finds no reason to interfere with the sentence.

22. In the circumstances and for the above-stated reasons, I find no merit in the appeal which is hereby dismissed.

DATED AT BUNGOMA THIS 5TH DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE