[2013] KEHC 2266 (KLR)
The court found that, although the appellant was properly convicted on his plea of guilty for possession and cultivation of cannabis, the trial magistrate erred in disregarding psychiatric and probation reports recommending rehabilitation. The judge held that imprisonment was not the best option given the...
Source-derived case information.
- Citation
- [2013] KEHC 2266 (KLR)
- Parties
- Appellant: Silvano Njue Gatanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 186 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied; probation ordered
- Legal Topics
- Narcotic Offences, Sentencing, Probation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvano Njue Gatanga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of imprisonment was appropriate given the appellant's mental health status and the nature of the offences.
- 2 Whether a probation order or rehabilitation would have been a more suitable sentence for the appellant.
Ratio Decidendi
The court found that, although the appellant was properly convicted on his plea of guilty for possession and cultivation of cannabis, the trial magistrate erred in disregarding psychiatric and probation reports recommending rehabilitation. The judge held that imprisonment was not the best option given the appellant's mental health and the nature of the offences. The court set aside the custodial sentence for count 2 and substituted it with a probation order, directing the appellant's release from prison to serve three years on probation under the supervision of the County Probation Officer. The conviction was upheld, but the sentence was modified to better serve the interests of justice...
Court Disposition
sentence varied; probation ordered
Orders
- The sentence of seven years imprisonment for count 2 is set aside.
- The appellant is sentenced to three years probation for count 2.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO.186 OF 2010
SILVANO NJUE GATANGA................................................ APPELLANT
VERSUS
REPUBLIC ...................................................................... PROSECUTOR
From original conviction and sentence in Criminal Case No. 417 OF 2010 at the Principal Magistrate’s Court at Siakago by Hon. S.M MOKUA – PM on 23/11/2010
J U D G M E N T
SILVANO NJUE GATANGAthe Appellant herein was charged with the following offences;
COUNT 1
Possession of cannabis (bhang) contrary to section 3(1) as read with section 2(1) of the Narcotic Drugs and Psychotropic Substances Control Act
of 1994.
The particulars as stated in the charge were as follows;
SILVANO NJUE GATAGA: On the 24th day of May 2010 at 5. 00pm at Gachoka village within Mbeere District within Eastern Province was found in possession of 5gms of cannabis (bhang) which was not medically prepared.
COUNT 2
Cultivating prohibited plants (bhang) contrary to section 6 sub section (A) of the Narcotic Drug and Psychotropic Substances Control Act No. 4 of 2004.
The particulars as stated in the charge were as follows;
SILVANO NJUE GATAGA: On the 24th day of May 2010 at Gachoka village within Mbeere District within Eastern Province was found cultivating prohibited plant (bhang) to wit 200 plants in a shamba.
He was convicted on his plea of Guilty after facts had been read to him on 21/7/2010. When he was brought back to Court for sentence on 23/7/2010 the Court referred him to a psychiatrist. He was confined at Mathere Mental Hospital for a few months. He was eventually sentenced as follows;
COUNT 1 - two (2) years imprisonment
COUNT 2 - seven (7) years imprisonment.
The order was that the sentences run concurrently. In the lower Court record is a probation officer’s report dated 13/8/2010. This is what the Court stated while sentencing the Appellant at page 12 lines 9 -11;
“I have looked at the psychiatric report and the report from Mathare Mental Hospital and bearing in mind of what the accused is charged with herein, I don’t consider the accused to be fit for probation”.
This Court has had a chance to look at the two reports mentioned by the learned trial Magistrate. Contrary to his finding the Appellant needed a comprehensive rehabilitation plan to assist him. Sending him to prison was not the best option. The Appellant has abandoned his appeal on conviction. The record shows he was properly convicted and I uphold the conviction. He has already served the two years in count 1. I therefore set aside the sentence in count two (2). I substitute it with a sentence of three (3) years on probation. The incharge G.K. Prison Embu is hereby directed to liase with the County Probation Officer to facilitate the Appellant’s removal from prison to Mbeere Probation office for directions. Conditions clearly explained to Appellant.
Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 5TH DAY OF SEPTEMBER 2013.
H.I. ONG'UDI
J U D G E
In the presence of;
M/s Ingahizu for State
Appellant – PIP
Mutero/Kirong – C/c