[2004] KEHC 478 (KLR)
The court found that the sentence of 5 years imprisonment was excessive given the appellant was a first offender, had pleaded guilty, and was found with only 4 rolls of cannabis sativa. The court held that a fine or other non-custodial sentence should have been considered before imposing a custodial sentence. The...
Source-derived case information.
- Citation
- [2004] KEHC 478 (KLR)
- Parties
- Appellant: Peter Musembi Katolo Kioko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 55 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_on_sentence
- Legal Topics
- Sentencing, Possession of Narcotics, First Offender, Plea of Guilty
- 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
Peter Musembi Katolo Kioko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 5 years imprisonment for possession of 4 rolls of cannabis sativa was excessive.
- 2 Whether the trial court considered alternative non-custodial sentences for a first offender.
Ratio Decidendi
The court found that the sentence of 5 years imprisonment was excessive given the appellant was a first offender, had pleaded guilty, and was found with only 4 rolls of cannabis sativa. The court held that a fine or other non-custodial sentence should have been considered before imposing a custodial sentence. The period already served by the appellant, approximately 1 year and 2 months, was deemed sufficient punishment. The appeal on sentence was allowed, and the sentence was substituted with the period already served, ordering the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed_on_sentence
Orders
- The sentence of 5 years imprisonment is set aside and substituted with the period already served.
- The appellant shall be set free forthwith unless lawfully held for some other reason.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL APPEAL. 55 OF 2003
PETER MUSEMBI KATOLO KIOKO…………….APPELLANT VERSUS REPUBLIC……………………………………………RESPONDENT
J U D G E M E N T
The appellant was charged before the Senior Resident Magistrate’s court Kangundo in CRC No. 800 of 2002 with an offence of being in possession of Cannabis Sativa contrary to section 3(1) as read with section 3 (2) of the psychotropic substances control Act no. 4 of 1994. He pleaded guilty to the offence, was convicted on his own plea and was sentenced to serve 5 years imprisonment. He has appealed. From the grounds of appeal it is clear that he has no problem with the conviction but the sentence which he feels is excessive.
The appellant was found with 4 rolls of bhang. After conviction he was treated as a first offender and pleaded that he had a child and wife. Counsel for the state supports the sentence as the maximum sentence under the Act is 10 years together with fine. All circumstances considered I do agree with the appellant that the sentence was very excessive. He had only 4 rolls of bhang. Being a first offender a fine or other non custodial sentence should have been considered before a custodial sentence was handed down on the appellant. The appellant was convicted and sentenced on 30. 12. 2002. He has already served over one year which I find to be still excessive. I will allow the appeal on sentence and substitute the sentence of 5 years imprisonment with the period served of about 1 year 2 months and the appellant should be set free forthwith unless lawfully held for some other reason.
Dated, read and delivered at Machakos this……………day
of…………..,2004.
R. WENDOH
JUDGE