[2016] KEHC 3685 (KLR)
The court found that the plea of guilty was properly taken, as the appellants had multiple opportunities over nearly three weeks to reconsider their plea and confirmed the facts as true. The conviction was therefore proper. However, the sentence of ten years imprisonment was deemed harsh and disproportionate given...
Source-derived case information.
- Citation
- [2016] KEHC 3685 (KLR)
- Parties
- Appellant: Said Athman Hamisi; Appellant: Rajab Mohamed Msoza; Appellant: Florence Kamene Mtala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 61 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- SJ Chitembwe
- Legal Topics
- Narcotic Drugs Possession, Plea Taking Procedure, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Athman Hamisi
Appellant
Rajab Mohamed Msoza
Appellant
Florence Kamene Mtala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the plea of guilty entered by the appellants was unequivocal and properly taken.
- 2 Whether the sentence imposed was excessive given the circumstances and value of the narcotic drugs.
Ratio Decidendi
The court found that the plea of guilty was properly taken, as the appellants had multiple opportunities over nearly three weeks to reconsider their plea and confirmed the facts as true. The conviction was therefore proper. However, the sentence of ten years imprisonment was deemed harsh and disproportionate given the low value of the narcotic drugs involved (Kshs.400) and the fact that the appellants had already served almost five years in custody. The court held that the period already served constituted sufficient punishment and substituted the original sentence with the time served, ordering the appellants' immediate release unless otherwise lawfully held.
Court Disposition
appeal_allowed_in_part
Orders
- The sentence of ten years imprisonment imposed by the trial court is set aside and replaced with the period already served.
- The appellants shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL APPEAL NO. 61 OF 2012
SAID ATHMAN HAMISI …………………….…………… 1ST APPELLANT
RAJAB MOHAMED MSOZA …………………………… 2ND APPELLANT
FLORENCE KAMENE MTALA ………………………… 3RD APPELLANT
VERSUS
REPUBLIC …………………………………………………… RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 757 of 2011 of the Chief Magistrate’s Court at Malindi – G. Sagero, RM)
JUDGEMENT
The three appellants were charged with the offence of being in possession of narcotic drugs contrary to section 3 (1) and 3 (2) (b) of the Narcotic Drugs and Psychotropic Substances Act No. 4 of 1994. The particulars of the offence were that the appellants, on the 17th November 2011 at about 9. 00 pm at Majengo Mapya Area in Malindi District within Kilifi County, were jointly found in possession of a narcotic drug to wit 4 satchets of heroin with a street value of Kshs.400/= in contravention of the said Act.
The appellants pleaded guilty to the charge and were each sentenced to serve ten (10) years imprisonment. They all filed similar grounds of appeal which are that the plea was equivocal, that the charges were not properly explained to them. That they are laymen and illiterate and were not conversant with the court process. That they did not know the consequences of pleading guilty.
During the hearing of the appeal the appellants informed the court that they are now reformed and have been in custody for a long time. They pleaded for leniency. The 3rd appellant told the court that she has two children.
Mr. Fedha, prosecution counsel, opposed the appeal. Counsel stated that the charges were correctly read to the appellants on 18th November, 2011 and they pleaded guilty. The facts were read on 9th December, 2011 and they also pleaded guilty to the facts. The plea was properly taken. Mr. Fedha concedes that the appellants have been in custody for quite some time.
The record of the trial court show that the plea was taken on 18th November, 2011. The appellants pleaded guilty to the charge. The prosecution informed the court that the facts of the case were not ready as the exhibits had been taken to the government analyst for examination. The matter was adjourned to 2nd December, 2011. Once again the report from the government analyst had not been received and the matter was adjourned to 9th December, 2011. On that date the facts of the case were read to the appellants and they confirmed that the facts were true. The trial court proceeded and convicted them on their respective guilty plea. It is therefore clear that the appellants had almost three weeks to reflect on their plea. They maintained that they were guilty and cannot alledge that the plea was equivocal. I do find that the plea was properly taken and the conviction is proper.
With regard to the issue of sentence, the charge involved narcotic drugs (heroin) with a street value of Kshs.400/=. The appellants were sentence to serve ten (10) years imprisonment without the option of a fine. The sentence is quite hash given the value of the drugs. The appellants were arrested on the 7th November, 2011 and have been in custody since that time. They have served almost five years in prison. I do find that to be enough punishment. The sentence of ten (10) years imprisonment imposed by the trial court is hereby sent aside and replaced with the period already served. The appellants shall be set at liberty unless otherwise lawfully held.
Dated and delivered in Malindi this 18th day of August, 2016.
S.J. CHITEMBWE
JUDGE