[2017] KEHC 5799 (KLR)
The court found that the particulars of the charge did not disclose the offence charged under section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994. Instead, the facts and particulars related to the cultivation of prohibited plants, which falls under section...
Source-derived case information.
- Citation
- [2017] KEHC 5799 (KLR)
- Parties
- Appellant: Samuel Mwangi Gakuya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- DW Mbuteti
- Legal Topics
- Narcotic Offences, Defective Charge, Conviction and Sentence, Cultivation of Bhang
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwangi Gakuya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charge as framed disclosed the offence charged under the relevant statutory provision.
- 2 Whether the conviction based on a defective charge could stand.
Ratio Decidendi
The court found that the particulars of the charge did not disclose the offence charged under section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994. Instead, the facts and particulars related to the cultivation of prohibited plants, which falls under section 6 of the Act. Since the charge was never amended to reflect the correct offence, the charge was incurably defective. As a result, the conviction could not stand, and the sentence imposed was set aside. The appeal was allowed in its entirety, and the appellant was ordered to be set at liberty unless otherwise lawfully held.
Court Disposition
appeal allowed
Orders
- The conviction is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 21 OF 2014
(From original conviction and sentence in Kigumo PM Criminal Case No 105 of 2014 – D. Orimba, SPM)
SAMUEL MWANGI GAKUYA.……………………………….APPELLANT
VERSUS
REPUBLIC……………………………….…….…....…...…RESPONDENT
J U D G M E N T
1. The Appellant herein, Samuel Mwangi Gakuya, pleaded guilty to and was convicted of the offence charged of cultivating bhang contrary to section 3(1) as read with section 3(2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994. The particulars of the offence alleged that on 18/01/2014 at Kanderendu Village in Kigumo District within Murang’a County he was found cultivating ten (10) plants of bhang.
He was fined KShs 200,000/00 and in default of payment to serve six (6) years imprisonment. He is serving the default sentence.
2. It is immediately obvious that the offence under section 3(1) as read with section 3(2) (a) of the Act is one of possession of narcotic drugs or psychotropic substances. The offence disclosed by the particulars given in the charge (and also as disclosed by the facts given by the prosecution and admitted by the Appellant) was one of cultivation of prohibited plants under section 6 of the Act. The charge facing the Appellant was never amended.
3. As the particulars of the offence did not disclose the offence charged, the charge was incurably defective, and learned prosecution counsel properly did not support the conviction.
4. In the event, I will allow this appeal in its entirety. The conviction is hereby quashed and the sentence imposed set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 18TH DAY OF MAY 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 19TH DAY OF MAY 2017