[2023] KEHC 25167 (KLR)

Thuranira v Republic (Criminal Appeal E162 of 2022) [2023] KEHC 25167 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25167 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E162 of 2022

LW Gitari, J

November 9, 2023

Between

Anthony Mwingirwa Thuranira

Appellant

and

Republic

Respondent

Judgment

1. The Appellant herein was charged with the offence of trafficking in narcotic drugs contrary to Section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act 2022 to be referred to as the Act. The particulars of the offence were that on 6th November, 2022 at Kiirua Market within Meru County, the Appellant was found trafficking by being in possession of thirty (30) rolls of narcotic drugs namely cannabis with a street value of Kshs. 1,500/= in contravention of the said Act.

2. He pleaded guilty to the said charged and was convicted on his own plea of guilty and sentenced to serve fifteen (15) years’ imprisonment.

3. This appeal is against the sentence only. The appeal is based on the following grounds:1. That the learned trial magistrate erred in both matters of law and fact by failing to note that the sentence is harsh and excessive.

2. That the learned trial magistrate erred in both matters of law and fact by rejecting the appellant mitigation without giving cogent reasons.

3. That these grounds have been highlighted without the court records and since I cannot recall everything that transpired during the trial I now beg this honourable court to furnish me with the court proceedings and ruling to draft grounds that are more cogent during the hearing of this appeal.

4. That I pray to be present during the hearing of this appealThe appellant prays that the appeal be allowed, the sentence be set aside and he be set at liberty

4. It is the Appellant’s contention is that the trial court erred by meting out a sentence that was harsh and excessive; and by rejecting his mitigation without giving cogent reasons. For these reasons, the Appellant prays for his appeal to be allowed by setting aside his sentence and setting him at liberty.

5. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 6. It is the Appellant’s submission that the sentence meted against him was excessive considering that he was a first offender and was remorseful. Further, that the learned magistrate erred by not taking into account that the value of the narcotic drugs that the Appellant was found with was only Kshs. 1,500/= and that the Appellant pleaded guilty to the offence and therefore did not waste the court’s time. The Appellant thus prays for mercy and leniency and urged this Court to substitute his sentence with a non-custodial sentence. The appellant relies on the cases of Caroline Auma Majabu-v- Republic (2014) eKLR and Titus Ngamau Musila alias Kaititu Criminal Case No. 78/2014 which cited the case of Santa Signgh –v- State of Punjab (1978) 4SCC 190 where the court stated:-“Proper sentence is the amalgam of many factors such as the nature of offence, the circumstances-extenuating or aggravation of the offence. The prior criminal record, if any, of the offender, the age of the offender the record of the offender as to employment, the background of the offender reference to education, home life, society and social adjustment, the emotional and mental condition of the offender, the prospects for rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility or treatment of training of the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence.”He has urged the court for a none custodial sentence.

The Respondent’s Submissions 7. In opposing the appeal, the Respondent submitted that the trial court did give the Appellant a penal notice on the offence being a serious in its nature and the severity of the sentence. Further, that the prosecution provided evidence before the trial court that the Appellant had previously been convicted for other offences by pointing out Criminal Cases No. E1325/21 and E1621/21. Finally, it was the Respondent’s submission that the trial magistrate considered the Appellant’s mitigation before sentencing him. The Respondent thus prayed that the Appellant’s sentence be upheld. The respondent has urged the court to rely on the Court of Appeal decision in Robert Mutungi Muumbi –v- Republic (2015) eKLR cited with approval in Benard Kimani Gacheru-v- Republic (2002) eKLR where the court stated as follows:-“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial coaurt. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstance of the case, or the trial court overlooked some material factor, or took into account, some wrong material or acted on a wrong principle. Even if the Appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

Issue for determination 8. From the grounds of appeal and submissions by the parties, the main issue that arises for determination is whether the sentence meted against the Appellant was excessive in the circumstances. Whether the court should interfere with the sentence imposed on the appellant.

Analysis 9. In Francis Nkunja Tharamba v Republic [2012]eKLR, the Court of Appeal held as follows when it came to a first appeal against sentence only:“…sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.”

10. The Appellant in this case faced the offence of trafficking narcotic drugs contrary to Section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Amendment Act 2022 which provides as follows:“Any person who traffics in or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable –a.In respect of any narcotic drug or psychotropic substance –i.Where the person is in possession of between 1- 100 grammes to fine of not less than thirty million shillings or to imprisonment for a term of thirty years or to both such fine and imprisonmentii.where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic drug or psychotropic substance, whichever is greater, or to imprisonment for fifty years, or to both such fine and imprisonment. ”

11. It is trite that on appeal, where the court is called upon to confirm the sentence it must be satisfied that the charge which the appellant faced was proper and the sentence was lawful. Under Section 134 of the Criminal Procedure Code (Cap 75 Laws of Kenya) it is provided:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

12. In this case, under Section 4 (a) (11) of the Act, it provides that it is an offence where an accused person is in possession of more than 100 grams of the narcotic drugs he shall be liable to pay a fine of not less than thirty million (supra) ….. .. This means that a proper charge must give the amount of the narcotic drugs or psychotropic substance in terms of grams.

13. In terms of Section 134 of the Criminal Procedure Code, for the prosecution to disclose the charge and the particulars to which an accused person is supposed to plead, the weight of the drug and psychotropic substance must be given in terms of grams. The amount of drugs in terms of drugs determines whether he is charged under Section 4 (a) (i) & (ii). The accused is said to have been in possession of (30) rolls of narcotic drugs with street value of Ksh.1,500/- The appellant was then charged under Section 4 (a) (ii) which carries a more severe punishment. I find that no basis was laid for charging the appellant under Section 4 (a) (ii) as the weight of the substance was unknown. Possession of rolls and street value are unknown to the Act.

14. I note that the appellant pleaded guilty. This notwithstanding he could not plead to a defective charge. The charge did not comply with Section 134 of the Criminal Procedure Code (supra) in terms of giving the appellant such particulars which were necessary for giving him reasonable particulars of offence charged. An accused person has the right to be given such details and the right cannot be limited as it is a matter of a fair trial. Article 50(2) (b) of the Constitution provides:-“Every accused person has the right to a fair trial, which includes the right to be informed of the charge with sufficient details to answer it.”

15. I find that the charge as preferred against the appellant was defective and the appellant ought not to have been convicted as it did not disclose an offence known to law. Section 89(5) of the Criminal Procedure Code provides as follows:“89(5)Where the magistrate is of the opinion that a complaint or formal charge made or presented under this section does not disclose an offence, the magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reasons for the order.”

16. A refusal to admit the charge gives the office of the respondent a chance to prefer a proper charge.

17. Having come to this conclusion, I need not consider the appeal on the sentence. It is trite that an accused person is entitle to be charged with an offence known to law and also to be furnished with all the necessary details of the offence so as to enable him appreciate the nature of the charge against him and to prepare an appropriate defence. The test whether a defect in a charge is fatal, the court has to determine whether there was any prejudice. See Court of Appeal in Isaac Nyoro Kimitu & another –v- Republic (2014) eKLR

18. In this case the defects occasioned a miscarriage of justice as the amount of drug was not known and this there was no bais for preferring the charge under Section 4(a) (iii) and to impose the sentence.

19. In the circumstances I find that the appeal has merits.

In Conclusion:1. I allow the appeal.2. The conviction is quashed and the sentence is set aside.3. I direct that there shall be a retrial of the appellant before a magistrate with jurisdiction other than the trial magistrate.4. The appellant be remanded at Meru Police Station.5. He be charged in the Chief Magistrate’s Court Meru Court, as soon as possible.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 9TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE