[2015] KEHC 5528 (KLR)
The court held that the sentence of five years imprisonment was justified and lawful, given the appellant's admission to previously selling the drug and his failure to offer any mitigation at the trial stage. The appellate court emphasized that it is not its function to consider mitigation that was not presented...
Source-derived case information.
- Citation
- [2015] KEHC 5528 (KLR)
- Parties
- Appellant: Sammy Kathiina Mathuva; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 33 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Possession of Narcotics, Sentencing Principles, Mitigation, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Kathiina Mathuva
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of five years imprisonment for possession of cannabis sativa was excessive or unjustified.
- 2 Whether the appellate court can consider mitigation not raised before the trial court.
Ratio Decidendi
The court held that the sentence of five years imprisonment was justified and lawful, given the appellant's admission to previously selling the drug and his failure to offer any mitigation at the trial stage. The appellate court emphasized that it is not its function to consider mitigation that was not presented before the trial court, especially where such mitigation is not new. The magistrate could not be faulted for imposing the sentence, and the appeal on sentence alone lacked merit.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of five years imprisonment are upheld.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINL APPEAL NO. 33 OF 2014
SAMMY KATHIINA MATHUVA …...................................... APPELLANT
VERSUS
REPUBLIC ….......................................................... RESPONDENT
JUDGMENT
The appellant was charged in the subordinate court with being in possession of cannabis sativa (bhang) contrary to section 3 (1) (2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The particulars of offence were that on 13th May 2014at Yumbe Village Mwambui Location in Mwingi Central District within Kitui County was found being in possession of cannabis sativa (bhang) to wit 300 gramms with a street value of Kshs. 3,000/= which was not in any form of medical preparation. He was recorded as having pleaded guilty to the charge. He was convicted and sentenced to serve five (5) years imprisonment. He had now appealed to this court on sentence alone. He also filed written submissions.
At the hearing of the appeal the appellant relied on the written submissions and added that he was the first born in the family and was sole breadwinner of his family. He stated that he was looking for leniency.
The Learned Prosecuting Counsel Mr. Orwa opposed the appeal and supported both conviction and sentence. Counsel submitted that the grounds of appeal were more of mitigation rather than an appeal.
I have perused the record of the trial court. In my view, the plea of the appellant was unequivocal. The appellant was thus properly convicted of the offence.
His appeal is on sentence. In the subordinate court after the facts were summarized, the appellant in admitting the facts also stated that at first he sold the bhang but he had stopped. When he was asked to say something in mitigation, he said nothing. In effect he did not mitigate. He was then sentenced to serve five (5) years imprisonment.
In my view, the sentence was justified though the appellant was a first offender. He clearly stated that he used to sell the drug. That was a serious admission. He also elected to say nothing in mitigation which means he was not remorseful. In my view, the learned magistrate could not consider the mitigation which the appellant now seems to be raising on appeal. Such mitigation was not availed to the trial court. Therefore the learned magistrate cannot be faulted for the sentence of five (5) years imprisonment. It is not the function of the appeal court to deal with mitigation that had not been raised before the trial court, as the mitigation now raised on appeal is not new. The sentence is also lawful. I thus find no merits in the appeal.
To conclude, this appeal has no merits. I dismiss the same and uphold both conviction and sentence.
Dated and delivered at Garissa this 3rd March, 2015
GEORGE DULU
JUDGE
In the presence of:-
The appellant in person
Mr. Okemwa for the State
Martin Court Clerk