[2010] KEHC 1362 (KLR)
The court found that the appellant's pre-trial rights were blatantly violated due to an inordinate and unexplained delay of over one month between arrest and arraignment for a misdemeanour offence. This delay rendered the subsequent trial null and void. Additionally, the sentence of three years' imprisonment for...
Source-derived case information.
- Citation
- [2010] KEHC 1362 (KLR)
- Parties
- Appellant: Willy Aseka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 228 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Narcotic Possession, Pre Trial Rights, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willy Aseka
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the delay in arraigning the appellant in court violated his pre-trial rights.
- 2 Whether the conviction and sentence were lawful and appropriate given the circumstances.
Ratio Decidendi
The court found that the appellant's pre-trial rights were blatantly violated due to an inordinate and unexplained delay of over one month between arrest and arraignment for a misdemeanour offence. This delay rendered the subsequent trial null and void. Additionally, the sentence of three years' imprisonment for possession of two rolls of bhang valued at Kshs. 20 was deemed harsh and excessive, particularly in the absence of evidence that the appellant was a repeat offender. The court held that alternative sentences should have been considered and that the time already served in custody was sufficient punishment for the minor offence.
Court Disposition
appeal_allowed
Orders
- The appeal against both conviction and sentence is allowed.
- The appellant is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 228 of 2009
(From Original Conviction and Sentence in Criminal Case No. 3634 of 2009 of the Chief Magistrate’s Court atMombasa::L. Mutende – S.P.M.)
WILLY ASEKA ..............................…….......….. APPELLANT
VERSUS
REPUBLIC ……………….…………..…………….. RESPONDENT
JUDGMENT
WILLY ASEKA the Appellant herein has appealed against his conviction and sentence by the learned Senior Principal Magistrate sitting at Mombasa Law Courts on a charge of BEING IN POSSESSION OF NARCOTIC DRUGS CONTRARY TO SECTION 3(1) AS READ WITH SUB-SECTION 2(a) OF NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCE ACT.The Appellant was arraigned before the lower court on11th November 2009and entered a plea of guilty to the charge.The facts were read out to him and he maintained his plea of guilty.The exhibit plant material 2 rolls and the report of the Government Chemist were both produced as exhibits.The learned trial magistrate convicted the Appellant and after listening to his mitigation sentenced him to serve three (3) years imprisonment.I am satisfied that the trial court did follow the correct laid down procedure in recording the Appellant’s plea of guilty and the conviction was lawful.Despite this I am in agreement with the decision of MR. ONSERIO, learned State Counsel to concede this appeal for two main reasons.
Firstly the record shows that the Appellant was arrested on9th October 2009. He was not arraigned in court until11th November 2009, one full month later.This was a misdemeanour offence and the police have not given any reasonable explanation for this delay in bringing the accused to court.It is my view that in the circumstances this delay was excessive and inordinate and amounted to a blatant violation of the Appellant’s pre-trial rights.Even if it could be argued that the Report of the Government Chemist took time to obtain, there was no need to keep the Appellant in police custody pending the availability of this report.The police ought to have arraigned the Appellant in court within 24 hours as required by law and applied in court for time to source for the report.I find absolutely no defence for this inordinate delay and on this basis the subsequent trial is null and void.
Secondly and even if I had not so found the three (3) year sentence imposed by the learned trial magistrate for possession of only two (2) rolls of bhang a mere Kshs.20/- was in my view harsh, excessive and unmerited.There is no indication that the Appellant was a repeat offender.The trial magistrate ought to have considered an alternative sentence like a fine, probation or community service.As it is the Appellant having been sentenced on11th November 2009has spent close to eight (8) months behind bars for a relatively minor offence.In my view the time he has spent in custody is sufficient and he has no doubt learnt his lesion.
Finally this appeal against both conviction and sentence is allowed.The Appellant to be released forthwith unless he is otherwise lawfully held.
Dated and Delivered inMombasathis 16th day of September 2010.
M. ODERO
JUDGE
Read in open court in the presence of:-
Appellant in person
Mr. Onserio for State
M. ODERO
JUDGE
16/09/2010