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JudgmentGERALD MATHU WANJIRU VS The Republic7 min read

GERALD MATHU WANJIRU VS The Republic

High Court at Muranga High Court · · Andayi W.F.

  1. The Appellant, Gerald Mathu Mwanjiru appeals against the sentence only. He was convicted on his own plea of guilty in two counts.
  2. The first count was for the offence of being in possession of narcotic drugs (bhang) to wit 65 rolls with a street value of KShs 3,250/= which was not in medical prescription form contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act (Cap. 245) Laws of Kenya. He was sentenced to 5 years imprisonment.
  3. The second count was resisting arrest contrary to section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya that he resisted arrest by No. 251275 PC Nelson Kibet and No. 82870 PC Johnson Mati police officers who were on due execution of their duties. He was sentenced to two years imprisonment. The learned trial magistrate directed the sentences to run concurrently.
  4. The appellant was dissatisfied with the said Judgement and lodged the appeal herein based on three (3) grounds challenging sentence only that the learned trial magistrate erred in law and in fact in:
    1. meting out a sentence that was unknown under the law and under the Narcotic Drugs and Psychotropic Substances Control Act (Cap. 245) Laws of Kenya under section 3(2)(a) and which in the circumstances was manifestly excessive having not established from the appellant that the bhang was intended for his own consumption or for other cases and which is a requirement under the said section and as such wrongly sentenced the appellant.
    2. imposing on the appellant a sentence of two years in count 2 which was harsh and manifestly excessive owing to the fact that it was not established that the persons effecting the arrest were members of the National Police Service and neither was the resistance or assault demonstrated as set out in the facts.
    3. failing to consider the nature of the charges against the appellant and that he was remorseful and that had saved the court precious judicial time and was a first offender and as such failed to apply leniency in the sentencing by imposing an alternative of a fine and thereby imposing a harsh sentence.
  5. The appeal was disposed of on written submissions filed by both the appellant and the respondent. In considering this appeal this court is alive to the position in law that sentencing is in the discretion of the trial court and the appellate court should not interfere with the sentence passed unless there is a material misdirection or unless the trial Judge has acted upon wrong principles or overlooked some material factors (see the case of Patrick Muli Mukutha v Republic [2019] eKLR and the various other decisions set out therein by Odunga, J.(as he then was)).
  6. On the first count, learned counsel for the appellant submits that the sentence of 5 years imprisonment imposed by the trial court was unknown under the law because the court failed to establish for what use the cannabis was.  Appellant submitted that he was remorseful for the offence and that that was the reason he pleaded guilty to the charge.
  7. Learned counsel for the prosecution conceded the appeal on that ground.
  8. The law under which the appellant was charged in the first count provides as follows:

3.(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;

  1. It is apparent that the provisions of the section cited by learned counsel for the appellant and with which the learned counsel for the prosecution agrees are under the old section which was amended by the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022 (Act. No. 4 of 2022) and which came into operation on 22/3/2022 about one year before the appellant herein was charged in this case. The amendment removed the distinction in sentencing where the narcotic drug was intended solely for ones own consumption and in every other case.
  2. Therefore, the submission by learned counsel that the court ought to have established the use for which the appellant intended to put the cannabis before passing the sentence becomes superfluous. The sentence provided for the offence was also reduced to a maximum of 5 years imprisonment with an alternative of a fine.
  3. Consequently, the appellant having pleaded guilty to a charge of being in possession of drugs under Section 3(1) as read with sub-section (2)(a) of the Narcotic Drugs and Psychotropic Substances (control) Act, was liable to imprisonment for a term not exceeding 5 years or a fine of not more than one hundred thousand shillings. The learned trial magistrate imposed the maximum term of five years imprisonment. The sentence was therefore not unlawful as submitted by the appellant.
  4. The other limb of the first ground of this appeal is that the sentence on the first count was manifestly excessive. In imposing the sentence, the learned trial magistrate observed that the appellant had boldly come to the court premises with the narcotic drugs and wondered what he could do away from the court premises. She therefore passed what she termed a punitive sentence upon the appellant.
  5. This court is not supposed to interfere with the discretion of the trial court in sentencing. However, I note that the learned trial court did not consider that the appellant had no previous records of conviction for a like offence. He was therefore a first offender. The appellant made a passionate mitigation through his learned counsel stating that he was highly remorseful and was willing to reform. The value of the narcotic drug he was found in possession of was also not high. All these were factors that mitigated the imposition of a maximum sentence provided for under the law.
  6. Taken together with the fact that he had pleaded guilty to the charge, I find that the mitigating factors outweighed the aggravating factors and so he ought to have benefited first from a non-custodial sentence given that it is an option available under the law. In the case of Charo Ngumbao Gugudu vs. Republic [2011] eKLR, the Court of Appeal held that:

“It has long been a principle of sentencing that a maximum sentence should only be meted out to the worst offender under the particular section that the offender is charged.

  1. For the foregoing reasons, I find that the learned trial magistrate misdirected herself in imposing the maximum sentence provided for the offence without considering the option of a fine which is provided for under the law.
  2. Moreover, under the Judiciary Sentencing Policy Guidelines, 2023 paragraph 2.7.5 provides that where the option of a fine is provided in the law, the court must first consider it before proceeding to impose a custodial sentence. In Riyadh Abdul Hafedh vs Republic [2006] eKLR the High Court, Muchelule J said of a custodial sentence without an option of a fine:-

 “Looking at the court proceedings, no reasons were given why  the court imposed a prison term and why a fine was thought to be inappropriate. While exercising its discretion in sentence, it is advisable that reasons be given on record to show what the trial court considered to determine the kind of sentence awarded.  In this case having considered that the accused person had pleaded guilty, was a first offender and his mitigation to the effect he was misled by a friend to use the passport in question, these circumstances weighed more in favour of the award of a fine than of imprisonment unless reasons were given to indicate otherwise.  None were given.  In the circumstances the sentence of imprisonment without the option of a fine was harsh”.

  1. The learned trial magistrate did not consider that option in this case and no reasons were given why the same would have been unsuitable. Consequently, I find that the sentence meted out in the first count was excessive and is for setting aside which I hereby do. I substitute the same with a sentence of a fine of KShs fifty thousand (KShs 50,000/=) in default to serve six months imprisonment. Given that the appellant has spent more than one year in prison, it means his default term of imprisonment in respect of the first count is spent.
  2. With respect to the second count, the sentence of resisting police arrest under section 103(a) of the National Police Service Act (Cap. 84) Laws of Kenya is a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years, or to both.
  3. Again, on the same reasoning offered above as in the first count, I find that the learned trial magistrate fell into error when she failed to consider the first option of a fine. Perhaps, the learned trial magistrate felt compelled to impose a custodial sentence since in the first count she had already passed a prison term. In the circumstances I find that she failed to exercise her discretion in sentencing judiciously and thereby passed an excessive sentence.
  4. For the same reasons as stated above, I hereby substitute the sentence on the second count of resisting arrest with one of a fine of KShs 100,000/= in default to serve 12 months imprisonment.
  5. Default terms of imprisonment run consecutively. This means that in default of payment of the fines, the appellant would serve 1½ years in custody. He was convicted and sentenced on 19/4/2024. The default term of imprisonment has not lapsed with respect to the second count. Consequently, he will have to either pay the balance of the fine or serve the remainder of the default term of imprisonment on the second count
  6. The upshot of my findings above is that the appellant’s appeal succeeds to the extent of substitution of his sentences from imprisonment to fines on both counts as stated above. He has the option of paying the balance of the fines pro-rated with the remainder of his term in prison or serving the default term to completion.
  7. Orders accordingly.

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    GERALD MATHU WANJIRU VS The Republic GERALD MATHU WANJIRU VS The Republic