[1990] KEHC 88 (KLR)
The court found that the appellant was convicted on count 1 for an offence that does not exist under section 11 of the Dangerous Drugs Act, rendering the conviction and sentence null and void. On count 2, the court held that the appellant's statement 'It is true' did not amount to a valid plea of guilty, especially...
Source-derived case information.
- Citation
- [1990] KEHC 88 (KLR)
- Parties
- Appellant: Oremo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 270 of 1989
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions and sentences quashed
- Legal Topics
- Dangerous Drugs Act, Plea of Guilty, Quashing Conviction, Knowledge in Possession, Invalid Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oremo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted under a non-existent offence of transporting cannabis sativa contrary to section 11 of the Dangerous Drugs Act.
- 2 Whether the plea 'It is true' constituted a valid plea of guilty for the charge of possession of cannabis sativa.
- 3 Whether knowledge is a necessary element for the offence of possession of cannabis sativa under the Dangerous Drugs Act.
Ratio Decidendi
The court found that the appellant was convicted on count 1 for an offence that does not exist under section 11 of the Dangerous Drugs Act, rendering the conviction and sentence null and void. On count 2, the court held that the appellant's statement 'It is true' did not amount to a valid plea of guilty, especially as he expressly denied knowledge that the substance was bhang, which is a necessary element of the offence of possession. The magistrate should have entered a plea of not guilty and proceeded to trial. As the bhang had been destroyed, a retrial was not feasible. Accordingly, both convictions and sentences were quashed.
Court Disposition
appeal allowed; convictions and sentences quashed
Orders
- Conviction on count 1 quashed and sentence set aside.
- Conviction on count 2 quashed and sentence set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
CRIMINAL APPEAL NO 270 OF 1989
OREMO………….…..…………………. APPELLANT
VERSUS
REPUBLIC……….……………………RESPONDENT
(From original conviction and sentence in Criminal Case No 1254 of 1989 of the Resident Magistrate’s Court at Siaya, Alex Anambo Esq RM)
JUDGMENT
The appellant was taken to have pleaded guilty to two counts, one stated to be transporting cannabis sativa, contrary to section 11 as punishable by section 18(2)(a) of the Dangerous Drugs Act and a second one of being in possession of cannabis sativa, contrary to section 10(e) as punishable by section 18(2)(a) of the same Act. There is clearly no offence called transporting cannabis sativa under section 11 of the Dangerous Drugs Act and the appellant was charged with a non-existence offence under that section. I quash the conviction recorded against him on that count and set aside the sentence imposed thereon.
As regards count 2, when the charge was read to the appellant he is recorded as saying: “It is true”. I have repeatedly drawn to the attention of the magistrates that the sentence “It is true” does not really amount to a plea of guilty. The facts were then stated by the prosecutor to the magistrate and at the end of those facts, the appellant told the magistrate he was not aware that what was being carried in the vehicle was bhang. The magistrate should have entered a plea of not guilty and the case should have gone for trial. Possession of bhang must involve knowledge that the bhang is there and if the appellant told the magistrate he was not aware what he was carrying was bhang, then he was obviously pleading not guilty. The magistrate should have entered a plea of not guilty for him. I am told that the bhang has now been destroyed and there is accordingly no point in my ordering a retrial.
I quash the conviction recorded on count 2 as well as set aside the sentence imposed thereon.
Dated and Delivered at Kisumu this 16th February, 1990
R.S.C OMOLO
……………
JUDGE