[2017] KEHC 51 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

HCRA NO. 20 OF 2017

YUSUF MOHAMED ALIAS "COBRA".............APPELLANT

=VERSUS=

REPUBLIC..........................................................RESPONDENT

(An Appeal from the original conviction and sentence of Kenya shillings 500,000 ID 5years imprisonment on 23/04/2015 by Hon. IM MUNGUT1 (Ag. SPM) at Lamu Law Courts in CR. Case No.10 of 2012)

JUDGMENT

1. The Appellant was convicted and sentenced to pay a fine of Kenya shillings 500,000 ID to serve 10 years imprisonment for the offence of trafficking in Narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and psychotropic (substances control) Act No. 4 of 1994.

2. The particulars of the charge were that on 1/1/2012 at Bwajumwali village in Lamu District within Lamu County the Appellant was found trafficking in Narcotic Drugs by conveying 10 and half rolls of cannabis sativa (bhang) valued at Ksh. 10,500/= in contravention of the Act.

3. The Appellant has now appealed against both conviction and sentence on the following grounds:-

(i) THAT the Appellant did not have a fair trial in that his trial contravened Article 50 (2) (c) & (j) of the Constitution of Kenya, 2010 and therefore the entire trial was a nullity.

(ii) THAT when the prosecution applied and was allowed to substitute the charge sheet and its particulars case had been partly heard and the Court failed to inform the Appellant of his right to recall the prosecution witnesses or any who had testified. This failure prejudiced the Appellant and occasioned a miscarriage of justice.

(iii) THAT the appellant was convicted of 2 counts in the original trial. The learned Principal Magistrate in sentencing the Appellant did not expressly state whether the sentences would run concurrently or cumulatively. The result is that the Appellant is now serving a 10 year sentence.

4. The Appellant added the following supplementary Ground of Appeal in addition to the Grounds of Appeal set out in his Petition of Appeal dated 16th March, 2017 and filed on 20 March, 2017:-

(i) THAT the prosecution did not produce and exhibit a CERTIFICATE OF VALUE in respect of the NARCOTICS in the trial Court.

5. The Appellant who was represented by Senior Counsel Mr. Olaba during the Appeal submitted that the trial was not fairly conducted in that the Appellant was not supplied with the statements at the commencement of the trial and that this is contrary to Article 50(j) of the Constitution of Kenya 2010.

Further, that the Appellant was sentenced pay a fine of Kenya shillings 500,000 ID to serve 10 years imprisonment and the trial court did not specify if the sentences were concurrent or consecutive.

6. The Appeal was conceded by the Respondent on the ground that the prosecution did not produce prove of the street value of the bhang as required by section 86 of the Narcotic drugs and psychotropic substances control Act No. 4 of 1994.

7. This is the first appellate Court and I have a duty to re-evaluate the evidence on record while bearing in mind that the trial court had the opportunity to see and hear the witnesses. In the case of KIILU ANOTHER —V- REPUBLIC [2005]1 KLR 174 the Court of Appeal stated thus;

An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must make its own findings and draw its own conclusions; Only then can it decide whether the Magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.

8. My findings are as follows:-

(i) I find that the Appeal is conceded on the ground that the prosecution did not produce prove of the street value of the bhang as required by section 86 of the Narcotic drugs and psychotropic substances control Act No. 4 of 1994. In the case of GABRIEL OJIAMBO NABESI Vs REPUBLIC[2007] eKLR the Court of Appeal stated as follows:-

"Section 4 (a) of the Act under which the appellants were charged and convicted provides that a person who trafficks in any narcotic drug or psychotropic substance 'shall be guilty of an offence and liable'

"(a) In respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater and, in addition to imprisonment for life ....."

Section 86 of the Act provides for valuation of goods for penalty, thus:

"86(1) Where in any prosecution under this Act any fine is to be determined by the market value of any narcotic drug, psychotropic substance or prohibited plant, a certificate under the hand of a proper officer of the market value of such narcotic drug or psychotropic substance shall be accepted by court as prima facie evidence of the value.

(2) In this section 'proper officer" means the officer authorized by the Minister by notification in the Gazette for purposes of this section".

(ii) In the circumstances, I find that the conviction and sentence herein are not secure. I accordingly allow the Appeal and I quash the conviction and set aside the sentence.

I further order that the Appellant be set free unless lawfully held for any other reason.

Dated, Delivered and Signed at Garsen this 19th July, 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE