[2010] KEHC 3500 (KLR)
The court found that the appellant's rights under section 77(2)(b) of the Constitution were not violated, as the charge and its elements were explained to him in a language he understood and he pleaded guilty. The court further held that, under section 348 of the Criminal Procedure Code, an appeal after a guilty...
Source-derived case information.
- Citation
- [2010] KEHC 3500 (KLR)
- Parties
- Appellant: Simon Maina Kagwaini; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 156 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence confirmed
- Judges
- MJA Emukule
- Legal Topics
- Narcotic Possession, Plea of Guilty, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Maina Kagwaini
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's rights under section 77(2)(b) of the Constitution were violated during plea taking.
- 2 Whether the sentence imposed was lawful and within statutory limits.
- 3 Whether the absence of government analyst examination of the exhibit invalidated the conviction.
Ratio Decidendi
The court found that the appellant's rights under section 77(2)(b) of the Constitution were not violated, as the charge and its elements were explained to him in a language he understood and he pleaded guilty. The court further held that, under section 348 of the Criminal Procedure Code, an appeal after a guilty plea is only permissible on the extent or legality of the sentence, which the appellant did not challenge. The sentence of three years was within the statutory limits prescribed by the Narcotic Drugs and Psychotropic Substances (Control) Act. The absence of government analyst examination was not raised as a ground affecting the legality of the conviction following a guilty plea....
Court Disposition
appeal dismissed; sentence confirmed
Orders
- The appeal is dismissed.
- The sentence of three years imprisonment imposed by the lower court is confirmed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL APPEAL 156 OF 2009
SIMON MAINA KAGWAINI…......………………………………APPELLANT
VERSUS
REPUBLIC………………………...….......………………..RESPONDENT
JUDGMENT
Simon Maina Kagwaini, the appellant was charged with the offence of being in possession of Cannabis Sativa contrary to section 3(1)(2) of Narcotic Drugs and Psychotropic Substances Act 1994 (No. 4 of 1994). He pleaded guilty and in mitigation he said that he was an IDP, prayed for leniency, that he had children who depend on him. He was sentenced to serve 3 years in jail. He has appealed to this court on five grounds namely:
1. That the exhibits concerned had not been taken to government analyst for examination and analysis to ascertain that it was indeed a narcotic drug.
2. The charges which he faced in the lower court were not explained to him contrary to the requirements of section 77(2) (b) of the Constitution.
3. He also raised the claim that the charges were not explained to him in a language that he understood contrary to the provisions of section 77 (2)(b) of the Constitution.
When the appeal was heard before me on 25th January 2010 the appellant did not argue any of the grounds of appeal and instead told the court that :
“I am sorry I made an error. I pray the court to have leniency on me. I am a poor man with three children their mother died in 2003 and is buried in Nandi”
I have examined the proceedings before the lower court and I am satisfied that the substance of the charges and every element thereof were explained to the appellant in a language that he understood and on being asked he replied in Kiswahili “It is true". So the claim of violation of his right under section 77 is therefore not well founded and the appeal is disallowed on that ground.
On the other grounds, and in view of the provisions of section 348 of the Criminal Procedure Code an appeal following a plea of guilty may only be entertained on the grounds of the extent or legality of the sentence. The appellant has not challenged either the extent or the legality of his sentence. The provisions of sections 3, (1) & (2) of the Narcotic Drugs and Psychotropic Substances (Control) Act provided for a sentence of ten (10) years, where the person accused satisfies the court that he awarded that the cannabis was solely intended for his own use, and otherwise to twenty (20) years imprisonment. With a sentence of three years the lower court was within the limits and the sentence was therefore lawful.
The appellant’s plea that he is remorseful of the offence and that he lost his wife and he is sole breadwinner for his three children, I would not reduce that sentence. I would therefore confirm the lower court's sentence and dismiss the appellant's appeal. There shall be orders accordingly.
Dated, delivered and signed at Nakuru this 26th day of February 2010
M. J. ANYARA EMUKULE
JUDGE