1. The Applicant herein was charged with the offence of being in possession of narcotic drugs contrary to Section 3(1)(a) as read with Section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. The particulars are that on 26.2.24 at 1900 hours at Mnagoni village in Mariakani sublocation, in Kaloleni subcounty, Kilifi county, the Applicant was found in possession of 2 big rolls of cannabis wrapped in a khaki paper with a street value of Kshs. 1,000/=. The Applicant was convicted on his own plea of guilty and sentenced to imprisonment of 2 years and 6 months with no option of a fine.
2. In the Application before me, the Applicant seeks that the sentence be quashed or in the alternative that the sentence be revised by lowering it with an option of non-custodial sentence.
3. The Applicant contends that he was charged under Section 3 of the Act yet he was convicted and sentenced under Section 4 of the Act. It is contended that the record does not show whether, when pronouncing sentence, the trial court took into account, the Applicant’s mitigation or that he was a first offender. The Applicant thus urged the Court to acquit him as he may suffer injustice as he is serving sentence for an offence with which he was not charged.
4. The record shows that the Applicant was charged under Section 3(1) and (2)(a) of the Act. Section 3(1) provides that subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence. Subsection 2(a) provides for the penalty where the person is found in possession of cannabis for his own consumption as follows:
(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;
5. The lower court record shows that after being convicted on his own plea of guilt, the Applicant told the trial court in mitigation that he was selling the bhang and asked for lenience. The trial court in sentencing the Applicant stated:
Upon considering the matters in mitigation it is evident that the cannabis was not used for the consumption of the accused person. However, the charge under which he is brought indicates that the cannabis was for his own consumption accordingly the maximum term imprisonment is 5 years or a fine of Kes.100,000 or to both the fine and a term imprisonment. Although the accused is a fast time offender it is evident that the cannabis was for sale meaning he was trafficking and not for his consumption. I believe a heftier sentence should be imposed upon the accused person. Accordingly, he is sentence to a term imprisonment of 2 years 6 months with no option of a fine. 14 days right of appeal.
6. Contrary to what the Applicant has stated, the trial court did consider his mitigation as well as the fact that he was a first offender. Additionally, contrary to the Applicant’s claim, he was convicted and sentenced under Section 3. Nowhere in the conviction and sentencing did the trial court state that the Applicant was convicted and sentenced under Section 4 of the Act. Indeed, the Applicant was convicted before he stated that he was selling the cannabis. The trial court while noting that the Appellant was a first offender decided to impose a “heftier sentence” as it was evident that the cannabis was for sale. The sentence imposed was within the range provided for under Section 3(2)(a) of the Act, which is the penalty for the offence to which the Applicant pleaded guilty.
7. The Constitution has conferred upon this Court supervisory jurisdiction over subordinate courts. Article 165(6) and (7) provides as follows:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice
8. In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice.
9. To give effect to this provision with regard to criminal matters, the Criminal Procedure Code provides for revision powers of the Court. It also elaborates the purpose of calling for the record of proceedings in subordinate courts by this Court, which is to satisfy itself as to the correctness, legality or propriety of any finding or order. Section 362 of the Criminal Procedure Code provides:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
10. Where the Court finds after examining the record of proceedings before a subordinate court, that the same are wanting in correctness or that there is illegality or impropriety of a finding, order or sentence, the Court may by dint of the revision powers conferred upon it by Section 364 enhance the sentence or alter or reverse the order except that of an acquittal.
11. I have examined the record of proceedings of the court below, I do not see any incorrectness, illegality or impropriety in the conviction or sentence. All were within the law.
12. In light of the foregoing, the Court finds that the Application herein is unmerited and the same is hereby dismissed.
DATED, SIGNED and DELIVERED in MALINDI this 23rd day of May 2025
2. In the Application before me, the Applicant seeks that the sentence be quashed or in the alternative that the sentence be revised by lowering it with an option of non-custodial sentence.
3. The Applicant contends that he was charged under Section 3 of the Act yet he was convicted and sentenced under Section 4 of the Act. It is contended that the record does not show whether, when pronouncing sentence, the trial court took into account, the Applicant’s mitigation or that he was a first offender. The Applicant thus urged the Court to acquit him as he may suffer injustice as he is serving sentence for an offence with which he was not charged.
4. The record shows that the Applicant was charged under Section 3(1) and (2)(a) of the Act. Section 3(1) provides that subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence. Subsection 2(a) provides for the penalty where the person is found in possession of cannabis for his own consumption as follows:
(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;
5. The lower court record shows that after being convicted on his own plea of guilt, the Applicant told the trial court in mitigation that he was selling the bhang and asked for lenience. The trial court in sentencing the Applicant stated:
Upon considering the matters in mitigation it is evident that the cannabis was not used for the consumption of the accused person. However, the charge under which he is brought indicates that the cannabis was for his own consumption accordingly the maximum term imprisonment is 5 years or a fine of Kes.100,000 or to both the fine and a term imprisonment. Although the accused is a fast time offender it is evident that the cannabis was for sale meaning he was trafficking and not for his consumption. I believe a heftier sentence should be imposed upon the accused person. Accordingly, he is sentence to a term imprisonment of 2 years 6 months with no option of a fine. 14 days right of appeal.
6. Contrary to what the Applicant has stated, the trial court did consider his mitigation as well as the fact that he was a first offender. Additionally, contrary to the Applicant’s claim, he was convicted and sentenced under Section 3. Nowhere in the conviction and sentencing did the trial court state that the Applicant was convicted and sentenced under Section 4 of the Act. Indeed, the Applicant was convicted before he stated that he was selling the cannabis. The trial court while noting that the Appellant was a first offender decided to impose a “heftier sentence” as it was evident that the cannabis was for sale. The sentence imposed was within the range provided for under Section 3(2)(a) of the Act, which is the penalty for the offence to which the Applicant pleaded guilty.
7. The Constitution has conferred upon this Court supervisory jurisdiction over subordinate courts. Article 165(6) and (7) provides as follows:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice
8. In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice.
9. To give effect to this provision with regard to criminal matters, the Criminal Procedure Code provides for revision powers of the Court. It also elaborates the purpose of calling for the record of proceedings in subordinate courts by this Court, which is to satisfy itself as to the correctness, legality or propriety of any finding or order. Section 362 of the Criminal Procedure Code provides:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
10. Where the Court finds after examining the record of proceedings before a subordinate court, that the same are wanting in correctness or that there is illegality or impropriety of a finding, order or sentence, the Court may by dint of the revision powers conferred upon it by Section 364 enhance the sentence or alter or reverse the order except that of an acquittal.
11. I have examined the record of proceedings of the court below, I do not see any incorrectness, illegality or impropriety in the conviction or sentence. All were within the law.
12. In light of the foregoing, the Court finds that the Application herein is unmerited and the same is hereby dismissed.
DATED, SIGNED and DELIVERED in MALINDI this 23rd day of May 2025