[2023] KEHC 27506 (KLR)

Omusi v Republic (Criminal Appeal E011 of 2023) [2023] KEHC 27506 (KLR) (4 October 2023) (Judgment)

Neutral citation: [2023] KEHC 27506 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E011 of 2023

KW Kiarie, J

October 4, 2023

Between

Dave Jerude Omusi

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case NO.E010 of 2023 of the Principal Magistrate’s Court at Ndhiwa by Hon. E.M Onzere–Principal Magistrate)

Judgment

1. Dave Jerude Omusi, the appellant herein, was convicted after pleading guilty to the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code.

2. The particulars of the offence are that on 5th January, 2023 at Okota village, East Kabwoch location, in Ndhiwa sub County within Homa Bay County, assaulted Grace Atieno Omusi occasioning her actual bodily harm.

3. In count two he is charged with an offence of cultivating narcotic drugs contrary to section 2 (1) b as read with section 6 (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act.

4. The particulars are that on the 9th day of January 2023 at Okota village, East Kabwoch location, in Ndhiwa sub County within Homa Bay County, he was found cultivating 18 stems of bhang.

5. The appellant was sentenced to one-year imprisonment on each count. The sentence was ordered to run concurrently. He was aggrieved and filed this appeal against the sentence. He raised the following grounds of appeal through the firm of Ongoso & Company Advocates:a.The honorable learned principal magistrate erred in fact and in law in misdirecting herself as per the dictates of law in not providing an alternative sentence of a fine, yet the same is provided for by the law.b.The honorable learned principal magistrate erred in fact and in law when she failed to offer an alternative option of a fine.c.The honorable learned principal magistrate erred in fact and in law by arriving at a sentence that is unconstitutional and illegal in nature and excessive in the circumstances yet the degree of injury was minor in nature and against the statutes which are against the natural cause of justice.d.The honorable learned principal magistrate erred in fact and in law by arriving at a judgment and sentencing that was not equivocal based on the charges preferred against him.e.That the ruling of the learned trial magistrate goes against the rules of natural justice and the rule of the law.

6. The appeal was conceded to by the state through Mr. Justus Ochengo, learned counsel. He argued that he ought to have benefitted from a noncustodial sentence.

7. This is the first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

8. Section 348 of the Criminal Procedure Code provides as follows: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.

9. Though it was contended that the plea was equivocal, my perusal of the record reveals that the learned trial magistrate took the plea in the manner prescribed in the case Adan vs. Republic [1973] E. A 445 where 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 with 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.

10. From the record, it is clear that the appellant understood the charges and he responded thereto with details. His plea on both counts was unequivocal.

11. Section 251 of the Penal Code provides:Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.

12. The complainant in this case was hit with a stick on the head and on the stomach where she sustained soft tissue injuries.

13. Section 6 (b) of the Narcotic Drugs and Psychotropic Substances (Control) ActAny person who—(b)being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of the cultivation, gathering or production of any prohibited plant, shall be guilty of an offence and liable to a fine of two hundred and fifty thousand shillings or three times the market value of the prohibited plant, whichever is the greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment.

14. An appellate court would interfere only where there exists, to a sufficient extent, circumstances entitling it to do so. Nelson vs. Republic [1970] E.A. 599 as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly 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 a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor! 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 v Shershewsity (1912) C.CA 28 T.LR 364.

15. It was not easy to discern the motive for the offence in count one from the facts but the injuries sustained by the complainant therein were not serious. Though the appellant had a previous conviction relevant to the offence, he ought to have benefitted from an alternative sentence.

16. Cultivation of cannabis sativa (bhang) is a serious offence. However, due to the quantity he had grown, the learned trial magistrate ought to have given him an alternative sentence.

17. I am persuaded to set aside the sentence on each count and substitute it as follows:a.In count one the appellant is sentenced to pay a fine of Kshs. 20,000. 00, in default to serve six (6) months imprisonment.b.In count two he is sentenced to a fine of Kshs. 50,000. 00 or serve six (6) months imprisonment.

18. The sentence will be effective from when he was sentenced by the trial magistrate. For avoidance of doubts, the fine will factor in the period already served.

DELIVERED AND SIGNED AT HOMA BAY THIS 4TH DAY OF OCTOBER 2023KIARIE WAWERU KIARIEJUDGE