Barasa & another v Republic (Criminal Appeal 193 of 2005) [2007] KECA 499 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a drug trafficking conviction because the charge didn't specify what 'trafficking' conduct occurred, substituting a possession conviction with a shorter sentence.
What this practically means
#Executive summary
#Key legal issues
#Scope of second appeal under section 361(1) of the Criminal Procedure Code
The Court is bound by concurrent findings of fact of the two courts below and will not interfere where they are supported by ample and credible evidence.
Section 361(1) confines a second appeal to matters of law. Relying on M'Riunga v Republic, the Court held it must accept findings of fact, resist treating them as holdings of law, and defer to the trial magistrate's superior position to judge witness credibility. The concurrent findings that the appellants jointly possessed the bhang were based on the detailed evidence of the conductor and informer, so no interference was warranted.
Whether trafficking was proved
The offence of trafficking was not proved because neither the charge sheet nor the evidence specified which dealing with the drug constituted trafficking; 'transportation' is not among the acts defined as trafficking.
'Trafficking' is a term of art embracing importation, exportation, manufacture, buying, sale, supplying, storing, administering, conveyance, delivery or distribution. The charge particulars did not specify the conduct constituting trafficking, the trial magistrate did not identify any such act, and the superior court relied on 'transportation', a word absent from the statutory definition and not relied on by the prosecution. The offence therefore failed.
Lawfulness of the sentence imposed for trafficking
The trial magistrate erred in imposing only 10 years imprisonment without the mandatory fine, and the superior court erred in confirming the conviction rather than considering conviction for possession.
Section 4(a) prescribes a composite penalty of a fine (one million shillings or three times market value, whichever is greater) plus imprisonment. The trial magistrate gave no reasons for omitting the fine; the superior court treated the charge as defective for omission of value but neither imposed a fine nor considered whether a fine could lawfully be imposed absent valuation. The sentence imposed was more appropriate to the lesser offence of possession.
Power to substitute conviction for a lesser cognate offence
Possession of cannabis sativa is a minor cognate offence to trafficking, and under section 179(1) of the Criminal Procedure Code the Court substituted a conviction for possession, sentencing each appellant to 5 years imprisonment.
Although the appellants were not charged with possession, section 179(1) permits conviction for a minor cognate offence. Section 361(4) gives this Court jurisdiction to substitute such a conviction and pass a substituted sentence. Since trafficking carries a maximum of life imprisonment plus a fine, while possession of cannabis for own consumption carries ten years, 5 years imprisonment was appropriate, running from the original conviction date.
Legal principles established
#- On a second appeal confined to matters of law, the appellate court must accept the findings of fact of the lower courts and not interfere unless no reasonable tribunal could have reached the decision.
- For a charge of trafficking in narcotic drugs to be disclosed and proved, the particulars of the charge must specify clearly the conduct of the accused constituting trafficking, and the prosecution must prove that conduct by evidence.
- The offence of trafficking carries a composite penalty of a fine and imprisonment; where the offence is proved, the trial court must impose both, and failure to do so without reasons is an error of law.
- This Court has jurisdiction on a second appeal to substitute a conviction for possession of narcotic drugs for one of trafficking and to pass a substituted sentence warranted in law.
Court orders
#- 1.Appeal allowed to the extent that the conviction for trafficking in narcotic drugs is quashed
- 2.Sentence of 10 years imprisonment set aside
- 3.Conviction substituted with conviction for possession of cannabis contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act
- 4.Each appellant sentenced to 5 years imprisonment running from the date of conviction by the trial court, i.e. 28th July, 2003
- On appeal from
- High Court of Kenya (superior court)
- null
- Jurisdiction invoked
- Section 361 (1) and (4) of the Criminal Procedure Code (second appeal on matters of law only; power to substitute a conviction)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Timami v Republic (Criminal Appeal E015 of 2024) [2025] KECA 2074 (KLR)[2025] KECA 2074 (KLR)5 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Barasa & another v Republic (Criminal Appeal 193 of 2005) [2007] KECA 499 (KLR)", Case Analysis (2007). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/499/eng@2007-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.