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Court of AppealPartially AllowedCriminal Appeal No. 65 of 2014· [2014] KECA 269 (KLR)

Caroline Auma Majabu v Republic [2014] KECA 269 (KLR)

Court of Appeal of Kenya
9 October 2014
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
2,500 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a drug trafficking conviction but ruled that 'liable' in section 4(a) means a maximum, not mandatory, sentence—replacing life imprisonment with a conditional discharge.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Mombasa (delivered at Malindi) by Caroline Auma Majabu against her conviction for trafficking in narcotics and her sentence of life imprisonment plus a fine of Kshs.1,000,000 imposed by the Chief Magistrate's Court at Malindi and affirmed in full by the High Court (Omondi, J.) on 10 June 2011. Under section 361(1) of the Criminal Procedure Code the court's jurisdiction was confined to matters of law. The court declined to disturb the concurrent findings of fact that the appellant was found holding seven sachets of heroin, confirmed by the Government Chemist, together with money; it held that once possession is proved the burden lies on the accused to show the drugs were intended solely for personal consumption, which the appellant failed to do. The conviction was therefore upheld. On sentence, however, the court held that the word 'liable' in section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Act confers a discretionary maximum, not a mandatory sentence, expressly departing from Kingsley Chukwu v R as decided per incuriam. Noting the disparity between the maximum sentence and the tiny quantity of drugs involved, and taking account of the appellant's mitigation and four years served, the court set aside the life sentence and fine and substituted a conditional discharge for one year under section 35(1) of the Penal Code. The appeal against conviction was dismissed; the appeal against sentence was allowed. No costs order was recorded.

Key legal issues

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01

Sufficiency of the evidence of trafficking and burden of proof

Holding

Possession was proved; the inference of sale was open on the circumstances, and the accused bears the burden of showing personal consumption.

Reasoning

The courts below made concurrent findings that the appellant held seven sachets of heroin confirmed by the Government Chemist, together with money. The court was prepared to accept the inference of sale was not the only one, but held that under section 3 of the Act possession suffices once the accused fails to satisfy the court the drugs were solely for her own consumption. Sections 107 and 108 of the Evidence Act were thus properly applied; the conviction could not be faulted.

p. 3
02

Whether section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Act prescribes a mandatory life sentence

Holding

It does not; 'liable' indicates a maximum sentence leaving sentencing discretion with the trial court, and Kingsley Chukwu v R to the contrary was per incuriam.

Reasoning

Distinguishing 'shall' (guilt) from 'liable' (sentence), and contrasting express mandatory provisions such as section 204 of the Penal Code and section 3 of the Sexual Offences Act, the court held that section 4(a) lacks the clear and unambiguous language required for a mandatory sentence. Sentencing is a judicial discretion and provisions creating mandatory sentences are the exception. Both lower courts misdirected themselves, committing an error of law justifying intervention.

p. 4
03

Proportionality of sentence for a small-quantity offender

Holding

The maximum sentence is intended for major traffickers; sentences for small-time offenders should be realistic and rehabilitative.

Reasoning

The court noted the disparity between a life sentence plus a Kshs.1,000,000 fine and seven sachets of heroin worth Kshs.700. Considering the appellant's mitigation (two children, HIV-positive status) and four years already served, the court found a conditional discharge under section 35(1) of the Penal Code appropriate, substituting it for the life sentence and fine.

p. 5

Legal principles established

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  • On a second appeal the Court of Appeal's jurisdiction is confined to matters of law and it will not disturb concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
  • The word 'liable' in section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Act confers a maximum, discretionary sentence, not a mandatory one; mandatory sentences must be expressed in clear and unambiguous terms.
  • Once possession of a narcotic drug is proved, the burden shifts to the accused to satisfy the court that the drug was intended solely for personal consumption.
  • Kingsley Chukwu v R was decided per incuriam and is departed from on the mandatory nature of section 4(a) sentences.

Court orders

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  1. 1.Dismissal of the appeal against conviction
  2. 2.Allowance of the appeal against sentence
  3. 3.Setting aside of the sentence of life imprisonment and the fine of Kshs.1,000,000/-
  4. 4.Substitution of an order discharging the appellant forthwith under section 35(1) of the Penal Code on condition that she does not commit any offence for the next one year

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substance Control Act No. 4 of 1994section 4(a)
  • Narcotic Drugs and Psychotropic Substance Control Act No. 4 of 1994section 2
  • Narcotic Drugs and Psychotropic Substance Control Act No. 4 of 1994section 3(1) and (2)
  • Criminal Procedure Codesection 361(1)
  • Evidence Actsections 107 and 108
  • Penal Codesection 35(1)
  • Penal Codesection 204
  • Penal Codesection 296(2)
  • Sexual Offences Actsection 3(3)

Cases cited (2)

  • Chemangong v Republic
    [1984] KLR 611
  • Kingsley Chukwu v R
    Criminal Appeal No. 257 of 2007 (2010 eKLR)
On appeal from
High Court of Kenya at Malindi
H.C.Cr.A. No. 85 of 2010
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code - second appeal on matters of law only

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Caroline Auma Majabu v Republic [2014] KECA 269 (KLR)", Case Analysis (2014). Criminal Appeal No. 65 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/269/eng@2014-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.