[2022] KEHC 14811 (KLR)

PMM v Republic (Criminal Appeal E031 of 2021) [2022] KEHC 14811 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14811 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E031 of 2021

GMA Dulu, J

November 2, 2022

Between

PMM

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. C.A Mayamba in Kilungu Principal Magistrate’s Court (CR) Case No.349 of 2019 pronounced on 25th April, 2019)

Judgment

1. The appellant was charged in the magistrate’s court with four (4) counts.

2. Count 1 was for trafficking of narcotic drugs(bhang) contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The particulars of the offence were that on March 26, 2019 at around 2145 hours in [Particulars Withheld] in Kilungu Sub-County within Makueni county, was found with 8 sachets of cannabis sativa (bhang) which was not medically prepared.

3. Count II was for threatening to kill contrary to section 223 of the Penal Code, the particulars of offence being that on March 26, 2019 at [Particulars Withheld] in Kilungu Sub-County within Makueni County without lawful excuse uttered words “Siku ile utaanguka tena nitakufunika na blanket na nihakikishe umekufa” words threatening to kill BMM.

4. Count III was for cruelty to a child contrary to section 127(1) (a) of the Children Act No. 8 of 2001. The particulars of offence were that on diverse dates between 1st January and March 26, 2019 at [Particulars Withheld], Kikoko Location Kilungu Sub-County within Makueni County being the father to MM aged 9 years, MM aged 7 years and JM aged 5 years degraded physical punishments (sic) by buttering them using a cane on their body, face and piercing the ears of MM aged 9 years using pliers causing actual bodily harm and feeding them with faeces an act that caused them to be children in need of care and protection.

5. Count IV was for neglect of children contrary to section 127(1) (b) of the Children Act, the particulars of which being that on diverse dates between 1st January and March 26, 2019 at [Particulars Withheld], Kikoko Location, Kilungu Subcounty within Makueni County being father to MM aged 11 years, MM aged 9 years, MM aged 7 years, and JM aged 5 years knowingly and unlawfully caused them to be children in need of care and protection by failing to feed them, buy school uniform and forcing them to sleep outside in the cold thus abandoning them.

6. He denied all the four counts. After a full trial, he was acquitted of count II of threatening to kill. He was however, convicted of count I, III and IV. He was sentenced to 30 years imprisonment on count I, and 5 years imprisonment on each of count III, and count IV. The sentences were ordered to run concurrently, thus a total prison sentence of 30 years imprisonment.

7. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds:-i.That the magistrate erred in law and fact in convicting him without considering his mitigation factors contrary to section 216 and 329 Criminal Procedure Code.ii.That the learned magistrate erred in law and fact in convicting him without observing that there were contradicting (sic) and inconstancies in evidence among the witnesses and without following the orders restrictions made unto the Children Act No. 8 of 2001. iii.That the trial magistrate erred in law and fact in convicting him without observing that there were no summons of the most essential witnesses by the prosecution to admit or reject their statement for fair trial and justiciable trial.

8. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by the appellant and those filed by the Director of Public Prosecutions.

9. This being a first appeal , I have to start by reminding myself that I am required to evaluate all the evidence on record a fresh and come to my own independent conclusions and inferences – See Okeno –vs- R (1972) EA32.

10. In proving their case, the prosecution called nine (9) witnesses. When put on his defence, the appellant tendered a sworn defense testimony and did not call any additional witnesses.

11. I not that count I on which the appellant was convicted was for trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Act, which provides as follows;4. Any person who traffics in or has in his or her possession any narcotic drug or psychographic substance or any substance represented or held out by him or her 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 substancei.Where the person is in possession of between 1 -200 grams to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years or to both such fine and imprisonment.ii.Where the person is in possession of more than 200 grams to a fine of not less than fifty million shillings or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or both such fine and imprisonment.

12. Having evaluated the evidence on record, I find that the appellant was arrested at night due to an allegation of committing offences under the Children Act, relating to his own children. In the process of arrest at the market, 8 rolls of cannabis sativa (bhang) were recovered from his pocket. The cannabis sativa was not quantified in terms of its weight, but in terms of the rolls or cigarettes.

13. Additionally, other than the evidence that he was found in possession of the rolls at the market, there is no evidence that he was selling the bhang. The evidence from witnesses who said that the appellant sold bhang was not tendered in court.

14. In my view therefore, the magistrate was in error in convicting the appellant for trafficking in narcotic drugs. The evidence on record, proved only the offence of possession of narcotic drugs under section 3 of the Act, which provides as follows;3(1)subject to subsection (3) any person who has in his possession any narcotic drugs or psychotropic substance shall be guilty of an offence.(2)A person guilty of an offence under subsection (1) shall be liable.a.In respect of cannabis where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment for a term of not more than five years or to a fine of not more than one hundred thousand shillings.

15. In my view, with the evidence on record, only the offence of possession of narcotic drugs was proposed by the prosecution. I will thus set aside the conviction for trafficking, and substitute a conviction for possession of narcotic drugs and sentence the appellant accordingly.

16. With regard to the offences under the Children Act, in my view the evidence on record is overwhelming that the appellant subjected two of his children to degrading treatment, and that he neglected all the four children. In my view therefore, the prosecution proved both count III and IV beyond any reasonable doubt. I will thus uphold the conviction on those two counts.

17. The appellant claims on appeal, that crucial witnesses were not called to be examined in court. With respect to the Government Analyst, the law allows his evidence to be tendered in his absence. If the accused wanted, he could have objected to production of the expert report at the trial. He did not. Thus the technical evidence was properly admitted in the absence of the expert witness, under section 77 of the Evidence Act (Cap.80).

18. With regard to failure to call the mother of the children, as a witness, it was explained that she was ailing, and in any case, the children gave first hand evidence on their treatment by the appellant, who is their father. I thus dismiss the appellant’s contention that crucial witnesses were not summoned by the prosecution to testify.

19. Consequently, I allow the appeal only in part. I quash the conviction for trafficking and substitute the same with a conviction for possession of narcotic drugs contrary to Section 3(1) as a read with 3(2) (a) of the Narcotic Drugs and Psychotropic substances Act. I set aside the sentence of 30 years imprisonment imposed by the trial court, and substitute it with a sentence of 5 years imprisonment.

20. I also uphold the conviction and sentence for count III and count IV. The sentences will run concurrently, thus the appellant will now serve a total prison sentence five (5) years imprisonment from the date he was sentenced by the trial court.

DATED, SIGNED AND DELIVERED THIS 2ND DAY OF NOVEMBER, 2022 IN OPEN COURT AT MAKUENI.........................GEORGE DULUJUDGE