Skip to content
JudgmentABDUL ALI MUSA ALIAS ALI MTUSI VS The Republic8 min read

ABDUL ALI MUSA ALIAS ALI MTUSI VS The Republic

High Court at Garsen High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARSEN

CRIMINAL APPEAL NO. E025 OF 2022

ABDUL ALI MUSA alias MTUSI …………………..…………...……………………….APPELLANT  

VERSUS

REPUBLIC …………………..…………………………………...……………………….RESPONDENT  

(An Appeal from the judgment of Hon. T. A Sitati, PM delivered on 26.7.22 in Lamu Criminal Case No. E528 of 2021)

          JUDGMENT

  1. The Appellant herein charged in Lamu Criminal Case No. E528 of 2021 of 5 offences. The first count was the offence of threatening to kill contrary to Section 223(1) of the Penal Code. The particulars of the offence are that on 18.12.1 at around 1200 hours at seafront area of Langoni location in Lamu in Lamu Central sub county within Lamu County, the Appellant unlawfully and wilfully without lawful excuse uttered words such as “nitapata mmoja wenu nitaua kuma mama zenu” threatening to kill one CPL Almasi of Lamu Police Station. In Count II, the Appellant was charged with the offence of resisting arrest contrary to Section 253(b) of the Penal Code. The particulars of the offence are that on the same date in the same place and time, he unlawfully resisted arrest of No. 224856 Cpl. Almasi, No. 113560 PC Mavins and No. 234241 PC Murage while executing their duty.
  2. In Count III, the Appellant was charged with the offence of going armed in public, contrary to Section 88 of the Penal Code, the particulars being that on the same day and time in the same place, the Appellant without lawful excuse went armed with a panga and a knife in a manner to cause terror to the residents of the area. In Count IV, the Appellant was charged with the offence of failure to register as a Kenyan Citizen contrary to Section 14(1) of the Registration of Persons Act. The particulars of this offence are that on the same day and time in the same area, being a citizen over 18 years, he was found not being registered as a Kenyan citizen. Finally in Count V, the Appellant was charged with the offence of being in possession of narcotic drugs contrary to Section 3(1) of the Narcotic Drugs and Psychotropic Substance Control Act. The particulars are that on the day and time and in the same area, he was found in possession of 20 rolls of bhang, a narcotic drug of a street value of Kshs. 8,000/= in contravention of the said Act.
  3. At the commencement of the trial, the Appellant cause his original national identity card which was verified. The prosecution thus withdrew count IV and the Appellant was discharged in respect of the said count.
  4. Following trial, the Appellant was on 26.7.22 convicted of all 4 counts. For Count I, he was fined Kshs. 300,000/= and in default, 4 years imprisonment from 22.12.21. For Count II, he was fined Kshs. 150,000/= and in default 2 years imprisonment from 22.12.21. For Count III, he was fined Kshs. 50,000/= and in default 6 months imprisonment. The trial court noted that the period the Appellant spent in custody had satisfied this penalty. For Count V, he was fined Kshs. 300,000/= and in default, 4 years imprisonment. 
  5. Being aggrieved by the decision of the trial court, the Appellant, filed the Appeal herein on 5.8.22 against sentence. In his grounds, he stated that he was remorseful and regretted committing the offence. Further that he is the sole bread winner for his family and old and ailing parents, who continue to suffer as a result of his incarceration. He further averred that the sentence of 6 years and 10 months and a fine of Kshs. 800,000/= was harsh. He pleaded for leniency and a review on the sentences to run concurrently or probation or a community service order. He urged the Court to give him the least severe form of sentence as provided under Article 50(2)(p) of the Constitution.
  6. The appeal is opposed by the Respondent and filed submissions dated 29.9.23. The Appellant did not file submissions and chose to rely on the grounds of appeal that he had filed.
  7. As a first appellate Court, I am required to subject the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
  8. From the grounds of appeal, it is clear that the Appeal is on sentence only. The Respondent asserted that the conviction and sentence was proper in all the counts. Further the sentences imposed were lenient and should be maintained. 
  9. The Appellant contended that the sentence of 6 years and 10 months and a fine of Kshs. 800,000/= was harsh and begged the Court for leniency and for a review of the same to run concurrently or probation or community service order.
  10. On its part, the Respondent submitted that the sentence imposed in each count is very lenient and that the same ought to have been more severe.  
  11. As indicated, the Appeal herein is on sentence and not the conviction. In Count I, the Appellant was charged with the offence of threatening to kill contrary to Section 223 of the Penal Code which provides:

Any person who without lawful excuse utters, or directly or indirectly causes any person to receive, a threat, whether in writing or not, to kill any person is guilty of a felony and is liable to imprisonment for ten years. 

  1. In sentencing the Appellant upon conviction of this offence, the trial court stated that while armed with a knife and panga, and resisting arrest, the Appellant threatened to kill the police. The trial court further stated that the Appellant was during this time in possession of narcotic drugs. The trial court noted that this this was a serious threat. In exercise of its discretion and in order to “penalise the Offender and denounce him” the trial court imposed upon the Appellant a fine of Kshs. 300,000/= and in default, 4 years imprisonment from 22.12.21, the date he was remanded in custody.
  2. In Count II, the Appellant was charged with the offence of resisting arrest contrary to Section 253(b) of the Penal Code which provides for a penalty of imprisonment for up to 5 years. In its decision, the trial court stated that for unnecessarily endangering the lives of the police officers in the deep Indian ocean during their attempt to arrest him, he was fined Kshs. 150,000/= and in default, 2 years imprisonment from 22.12.21. For Count III of going armed n public, the appellant was fined Kshs. 50,000/= of 6 months imprisonment. The trial court noted that period spent in custody had satisfied this penalty.
  3. Finally, for the offence of being in possession of narcotics contrary to Section 3(1) of the Narcotic Drugs and Psychotropic Substance Control Act. The trial court while noting that the same carries a maximum of 10 years imprisonment fined the Appellant Kshs. 300,000/= and in default 4 years imprisonment.
  4. Section 3 of the Narcotic Drugs and Psychotropic Substance Control Act makes provision for penalty for possession of narcotic drugs. It provides in part as follows:
  5. Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.
  6. A person guilty of an offence under subsection (1) shall be liable—
  7. in respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment to a term of not more than five years or to a fine of not more than one hundred thousand shillings;
  8. …
  9. The above provision under which the Appellant was charged provides for a maximum penalty of five years imprisonment or a fine of not more than one hundred thousand shillings. It is thus not clear why the trial magistrate stated in sentencing, that the offence carries a maximum of 10 years imprisonment. The trial court went ahead and fined the Appellant Kshs. 300,000/= and in default, 4 years imprisonment.
  10. It is trite law that an appellate court will not interfere with the trial court’s exercise of discretion in sentencing except where there is clear misdirection in the exercise of that discretion. In this disregard I am guided by decision in Peter Mbugua Kabui v Republic [2016] eKLR where the Court of Appeal stated:

The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court are now old hat. The predecessor of this Court, in the case of Ogolla s/o Owuor vs Republic, [1954] EACA 270, pronounced itself on this issue as follows:-

\"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors”. To this, we would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case (R - v- Shershowsky (1912) CCA 28TLR 263).\" See also Omuse - v- R (supra) while in the case of Shadrack Kipkoech Kogo - vs - R., Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-

sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”

In the more recent case of Kenneth Kimani Kamunyu -vs- R. (2006) eKLR, this Court reiterated this principle and stated that an appellate Court can only interfere with the sentence if it is illegal or unlawful. (emphasis added).

  1. The evidence on record shows that the Appellant was armed with a panga and a knife. He resisted arrest by plunging into the deep ocean and threatened to drown the police officers as they tried to arrest him. Whereas it is true that the Appellant was found to be in possession of bhang which was in the bag he had thrown into the ocean and resisted arrest and further endangered the lives of the police who arrested him, he still retained his constitutional right to be punished only in the manner prescribed by the law. The trial court thus fell into error by imposing what is clearly an illegal and unlawful sentence. Accordingly, the review of that sentence by this Court is warranted. 
  2. In the end, after re-evaluating the evidence, my finding is that the Appeal partially succeeds. The Appellant was properly sentenced on Counts I, II, and III and the sentences are hereby upheld. The sentence in respect of Count V being illegal is hereby set aside.   

DATED SIGNED and DELIVERED vis MS Teams this 27th day of September 2024

_____________________

M. THANDE

JUDGE

    ABDUL ALI MUSA ALIAS ALI MTUSI VS The Republic ABDUL ALI MUSA ALIAS ALI MTUSI VS The Republic