[2018] KEHC 4727 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL APPEAL NO.78 OF 2017

ZACHARIAH MOSE CHOKORA................APPELLANT

-VERSUS-

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

(Being an appeal against the conviction and the sentence of the subordinate court

of the imprisonment at Ogembo Law Court before Hon. C.R. T ATEYA (RM)

the judgment was delivered on 2nd day of November 2017).

JUDGMENT

1. ZACHARIAH MOSE CHOKORA hereinafter referred to as the appellant being aggrieved and dissatisfied with both conviction and the sentence of 10 years imprisonment that was imposed upon him has appealed against the same. The appellant was charged with the offence of “Being in possession of Cannabis Sativa (bhang) contrary to Section 3 (1) as read with Section 3 (2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act No.12 of 2012”.

2. The appellant’s only ground of appeal is that the sentence of 10 years imprisonment is manifestly oppressive given that he pleaded guilty and there was no consideration as first offender.

3. The hearing of the appeal the appellant stated that he was jailed for 10 years without a fine and that the court should consider he is 28 years old and has a family who are currently all alone.

4. The prosecutor in response submitted that the appellant was rightly convicted for being in possession of bhang with a value of 120/= and he pleaded guilty to the offence. That the proceedings are intact but the court should look at the sentence. The maximum sentence is 10 years and that is why the appellant is grieving. That the sentence is manifestly harsh. That the appellant has other cases which were not previous convictions and that the court should not have given such a harsh sentence.

DETERMINATION

5. As a first appellate Court, it is my task to reevaluate the proceedings in the lower court and make my own findings (see case of Selle & another –vs.- Associated Motor Boat Co. Ltd.& others (1968) EA 123).I have perused the Lower Court file. The appellant changed his plea to one of guilty on the 24/10/2017. The facts were read to him and he admitted that the facts were true. The facts disclosed that the appellant was found with six rolls of bhang in his jacket. A report from Government Analyst “Pexbt 2” was produced in court which confirmed that the six rolls cigarette like rolls of dry plant material was examined and found to be Cannabis which is included in the first schedule of the Narcotic Drugs and Psychotropic Substances (Control) Act. 1994.

6. Section 3(1) and (2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) provides as follows ;

(1) Subject to Subsection (3), any person who has in his possession any narcotic drug or psychotropic substances shall be guilty of an offence.

(2) A person guilty of an offence under subsection (1) shall be liable

(a) in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption , to imprisonment for ten years and in every other case to imprisonment for twenty years;

7. The appellant’s ground of appeal is that the sentence was excessive. He was found will 6 rolls of Cannabis Sativa (Bhang). The street value is said to be 120/-. Whilst sentencing the appellant the learned trial magistrate stated that the appellant had two other cases in Keroka Law Courts including one of escape from lawful custody and that he is not suitable for a non-custodial sentence and proceeded to sentence the appellant to 10 years imprisonment. I note that the prosecutor in the lower court indicated that the appellant had no previous record. The trial magistrate had knowledge of other cases against the appellant but there is no evidence that he had been convicted in any of them. In Criminal Appeal 479 of 2007 of Daniel Kyalo Muema vs. Republic the Court of Appeal in explaining the words shall be liablestated as follows;

What is the true construction of the words “shall be liable” in the context of Section 3 (2) (a) of the Act?In searching for the intention of the Parliament, the first observation to make is that generally speaking, the penalty prescribed by a written law for an offence, unless a contrary intention appears, is the maximum penalty. This principle is contained in Section 66 (1) of the Interpretation and General Provisions Act (Cap 2 Laws of Kenya) which provides:

“Where in a written law a penalty is prescribed for an offence under that written law, that provision shall, unless a contrary intention appears, mean that the offence shall be punishable by a penalty not exceeding the penalty prescribed”.

The second observation is that the principle of law in Section 66 aforesaid is entrenched in Section 26 of the Penal Code which expressly authorizes a court to sentence the offender to a shorter term than the maximum provided by any written law and further authorizes the court to pass a sentence of a fine in addition to or in substitution for imprisonment except where the law provides for a minimum sentence of imprisonment. In particular, Section 26 (2) and (3) of the Penal Code provides:

“(2) Save as may be expressly provided by the law under which the offence concerned in punishable, a person liable to imprisonment for life or any other shorter period may be sentenced to any shorter term.

(3) A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment”.

There is however a proviso to Section 26 (3) that a fine cannot be substituted for imprisonment where the law concerned provides for a minimum sentence of imprisonment. Section 28 (1) (a) of the Penal Code provides that where the Court imposes a fine under any law but the law does not expressly provide for the amount of the fine that can be imposed, then, the amount of fine that may be imposed is unlimited but shall not be excessive.

From the language of Section 26 and 28 of the Penal Code, it is clear that those are general provisions of law which apply not only to the offences prescribed in the Penal Code but also to offences under other written laws.

Thirdly, the preamble to the Act does not show that one of the purposes of the Act is to provide for mandatory sentences. Indeed, for the more serious offence of trafficking in narcotic or psychotropic substances in Section 4, for example, the Parliament uses the phrase – “shall be guilty of an offence and liable” – which phrase does not import a mandatory sentence. That is why in Kolongei vs. Republic [2005] 1 KLR 7, the appellant who was convicted of trafficking in 27. 8 Kgs. of heroin was sentenced to 18 years imprisonment plus a fine and not to the prescribed life imprisonment plus a fine (see also Gathara vs. Republic [2005] 2 KLR 58 where the appellant was sentence to 10 years imprisonment plus a fine for trafficking in eleven (11) bags of cannabis sativa.(Emphasis added).The last observation we want to make is that the phrase as used in Penal statutes was judicially construed by the predecessor of this Court in Opoya vs. Uganda [1967] EA 752 where the Court said at page 754 paragraph B:

“It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it”.

8. The Court of Appeal’s in the above case held that the sentence to be imposed in case like the appellant’s, is at the court’s discretion. The appellant had no previous convictions, the amount of cannabis sativa he was found with is 6 rolls of cannabis sativa worth 120/-. In my view a sentence of 10 years was excessive. The conviction was proper but the sentence is set aside. The appellant shall pay a fine of Kshs 10,000/- in default six (6) months imprisonment. The sentence to run from the date of his conviction in the lower court. The appellant has a right of appeal within 14 days from the date hereof. It is so ordered.

Dated signed and delivered this 9th day of August 2018

R.E.OUGO

JUDGE

In the presence of;

Appellant in person

Mr. Otieno For the State

Rael Court/ clerk