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JudgmentDENNIS MUENDO KASYIMA VS ODPP5 min read

DENNIS MUENDO KASYIMA VS ODPP

High Court at Makueni High Court · · Matheka, Teresia Mumbua

JUDGMENT

(Appeal from the Sentence in Kilungu MCCRC E962 of 2021)

  1. On 14/12/2021, the appellant pleaded guilty to one count of possession of cannabis sativa (bhang) contrary to section 3(1) as read with 3(2) of the Narcotic Drugs and Psychotropic Substance Control Act No. 4 of 1994.
  2. That on 11/12/2021 at around 19:30 hour at Kikoko market in Kikoko location Makueni County he was found in possession of 4kgs of cannabis sativa valued at Kshs. 10,000/= which was not in medicinal form.
  3. The facts were that the police while on patrol at Nunguni received a tip off that the accused was dealing in bhang. That accused was having a motor ride and was carrying cannabis sativa. That it was established he had 4 kilograms of the stuff valued at Ksh. 10,000/=.
  4. He was charged upon arrest and, pleaded guilty, in court the trial court noted “4kgs cannabis sativa – PEX 1). The accused simply stated “ni ukweli”, the prosecution stated “1st offender” in mitigation he said “I am sorry I have a wife and a child” the court: Accused is fined Ksh. 250,000/= in default 5 years’ imprisonment”.
  5. The accused filed this appeal on 11/3/2022 against both the sentence and the conviction. He argued, in his self-written submissions that though he was in possession of the bhang he was not aware it was bhang and it was not his; that he was a first offender and he had a young family, he sought the option of fine or non-custodial sentence.
  6. On the part of the state, it is submitted by the prosecution that having pleaded guilty and on account of section 348 of the Criminal Procedure Code the appellant does not get to challenge the conviction but can challenge the sentence on account of legality/harshness/excessive. That the sentence meted against him was very lenient.
  7. I have carefully considered the rival submissions by the parties.
  8. Section 348 of the Criminal Procedure Code states:

No appeal on plea of guilty, nor in petty cases

No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

9. Section 3 of the NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (CONTROL) ACT provides for Penalty for possession of narcotic drugs, etc.

(1) Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance 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 to a term of not more than five years or to a fine of not more than one hundred thousand shillings;

(b)in respect of a narcotic drug or psychotropic substance, other than cannabis, where a person is in possession of less than one gram, to a fine of not less than five million shillings, or to imprisonment to a term of not less than five years, or to both such fine and imprisonment; and

(c)to, in addition to the sentences in paragraph (a) and (b) respectively, committal to appropriate court appointed treatment programme or to voluntary submission to a rehabilitation programme for a period not less than six months, where the court deems fit.

  1. It is true that the accused pleaded guilty to the charge and the facts. The facts were that ‘Police received a tip off that the accused was dealing in bhang’
  2. The issue is whether the plea was unequivocal.
  3. To deal with that issue the question is what evidence did the state produce that what the appellant was found with was 4kg cannabis sativa, not in medicinal form and that he was dealing?
  4. The charge carries stiff penalty of a term of not more than five years or to a fine of not more than one hundred thousand shillings; and one would have expected that the DPP would make the effort to establish that what was before court was cannabis sativa, and that it was 4kgs, and that the appellant was dealing.
  5. The prosecutor simply stated that he was tendering 4kg of cannabis sativa as PEX 1. There was no accompanying forensic report. The plea of guilty notwithstanding the DPP still had the duty to place before court and the court had the duty to satisfy itself that what was before it was cannabis sativa, as described by the law. There was also need to provide and receive evidence of the alleged weight.
  6. That said it is evident from the record before the trial court that the appellant knew he was carrying bhang but denies it was his.
  7. The court trial court was satisfied that the bhang was for the personal use of the appellant.
  8. The conviction was based on unequivocal plea of guilt.
  9. On sentence, the prosecution told the court that he was 1st offender.
  10. He was sentenced to fine of Ksh 250000 in default 5 years’ imprisonment. The sentence on fine says not more than 100,000.
  11. This fine is subject to revision.
  12. He was arrested on 12/12/2021 – so far he has served about 30 of his 60 month’s sentence. His request for fine – he was already sentenced to pay fine – having served about ½ of his default sentence his fine would be around 125,000/=.  However, it ought to have been Ksh 100,000. The prison authorities can work out the exact amount at fine of Ksh 100,000 in default 5 years’ imprisonment.
  13. Even on appeal, the appellant continues to admit that he was in possession of bhang but it belonged to someone else.
  14. Ignorance is not a defence to crime as it is expected that everyone ought to know the law and to abide by the laws of the land.
  15. Even then the trial court in the sentence, ought to have balanced the seriousness of the offence with the fact that he was a first offender.
  16. Ultimately the sentence is lawful, save for the amount of the fine. It ought to have been Ksh 100,000 in default 5 years’ imprisonment.
  17. The sentence of Ksh 250,000 in default 5 years’ imprisonment is set aside and substituted with fine of Ksh 100,000 in default 5 years’ imprisonment with effect from the date of arrest, 12th December 2021.
  18. The appellant has served about half the default sentence. I am of the view that he could benefit from a non-custodial sentence.
  19. He is also at liberty to pay the outstanding fine.
  20. For purposes of the non-custodial sentence, I order for sentence review report from PACs to be availed within 14 days hereof when the matter will be mentioned.
  21. PACS be served.
  22. Orders accordingly

Dated, signed and delivered on 12th day of July 2024

Mumbua T Matheka

Judge

MR. KAZUNGU for state

MS. NELIMA Court Assistant

APPELLANT PRESENT

PACS REPORT ON 24TH JULY 2024

    DENNIS MUENDO KASYIMA VS ODPP DENNIS MUENDO KASYIMA VS ODPP