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Court of AppealDismissedCriminal Appeal No. 133 of 2012· [2016] KECA 277 (KLR)

Joshua Atula Atula & another v Republic [2016] KECA 277 (KLR)

Court of Appeal of Kenya
2 August 2016
RNR. N. NambuyePhilomena Mbete MwiluP. M. MwiluPKP. O. Kiage
2,951 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals only address legal errors, so drug trafficking convictions and sentences stood.

What this practically means

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Executive summary

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This is a second appeal before the Court of Appeal at Nyeri (sitting at Nakuru), in which two appellants convicted of trafficking in 2,200 stones of cannabis sativa challenged conviction and sentence. The trial magistrate convicted them and fined each Kshs.1,320,000 in default 12 months imprisonment, plus 15 years imprisonment; the High Court (Wendoh J) upheld the conviction but reduced the fine to Kshs.1 million in default 12 months imprisonment, having noted the drug value was not ascertained. The Court of Appeal, constrained by section 361(1)(a) of the Criminal Procedure Code to matters of law, dismissed both appeals. The first appellant sought only mitigation, which the Court held is alien on a second appeal and outside its jurisdiction since the sentence was not shown to be unlawful. The second appellant's grounds on discrepancies in witness evidence failed because the High Court had properly re-evaluated the evidence and concurrent findings bind a second appellate court. On the defective-charge ground, the Court held the particulars adequately identified the drug, its street value, place and manner of trafficking, so the legislative purpose of section 137 CPC was met. On sentence, the Court held that where the market value is not ascertained, the default fine is the statutory minimum of one million shillings; the value becomes material only where a fine beyond that sum is imposed, so no prejudice was caused. The judgment affirms the High Court decision and is binding authority on the limited jurisdiction of second appeals, the impermissibility of mitigation on second appeal, and the interpretation of sections 4(a) and 86 of the Narcotic Drugs and Psychotropic Substances Control Act.

Key legal issues

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01

Scope of jurisdiction on a second appeal

Holding

The Court's jurisdiction is limited by section 361(1)(a) CPC to issues of law; concurrent findings of fact are binding, and mitigation is not cognizable on a second appeal.

Reasoning

Section 361(1)(a) Criminal Procedure Code limits second appeals to matters of law. The first appellant raised no allegation that the sentence was unlawful and sought only mitigation, which is a matter of fact alien to a second appeal. The Court therefore had no jurisdiction to entertain the plea and the first appellant's appeal failed entirely.

p. 2
02

Defective charge - failure to state weight of drugs

Holding

The charge was not defective; the particulars stating the drug, its street value, place and manner of trafficking satisfied the legislative purpose of section 137 CPC, and the failure to state weight caused no prejudice.

Reasoning

The legislative intent behind section 137 CPC is that particulars be simple enough for the accused to understand the offence and prepare a defence. Here the particulars identified the cannabis sativa, street value, place and manner of trafficking. Nothing suggested the second appellant misunderstood the charge. Further, the exhibits (2200 stones) were produced and no tampering was alleged, so no prejudice arose from the missing weight.

p. 4
03

Conformity of sentence with sections 86 and 4(a) of the NDPS Act

Holding

The fine of one million shillings is the alternate minimum; ascertainment of market value matters only where the fine exceeds one million shillings, so the High Court's sentence was lawful.

Reasoning

Section 4(a) provides for a fine of one million shillings or three times the market value, whichever is greater, plus imprisonment. Since the value of the drugs was not properly ascertained, the default fine is one million shillings. The High Court imposed the minimum fine of Kshs.1 million, so no prejudice was occasioned to the second appellant and the Court would not interfere with the sentence.

p. 5
04

Discrepancies in witness testimony

Holding

Discrepancies not going to the root of the prosecution case may be ignored under section 382 CPC; the High Court properly re-evaluated the evidence and reached the same conclusion as the trial court.

Reasoning

The trial court has a duty to reconcile alleged discrepancies, failing which the first appellate court must reconcile them and determine whether they go to the root of the case. Where they do not affect an otherwise proved case, they may be ignored per section 382 CPC. The High Court as first appellate court appraised and re-evaluated the evidence and reached the trial court's conclusion; re-evaluation is not the second appellate court's duty.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to points of law and bound by concurrent findings of fact of the lower courts.
  • Mitigation is not a permissible ground on a second appeal; severity of sentence is a matter of fact outside the Court's jurisdiction.
  • Failure to ascertain the market value of drugs causes no prejudice where the fine imposed is the statutory minimum of one million shillings under section 4(a).
  • A High Court decision does not bind the Court of Appeal, which hears and determines appeals from the High Court.

Court orders

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  1. 1.The appeals are unmerited and are dismissed accordingly

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substances (Control) ActSection 4(a)
  • Narcotic Drugs and Psychotropic Substances (Control) ActSection 3
  • Narcotic Drugs and Psychotropic Substances (Control) ActSection 74A
  • Narcotic Drugs and Psychotropic Substances (Control) ActSection 86(1)
  • Criminal Procedure CodeSection 137C
  • Criminal Procedure CodeSection 137
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 382
  • Court of Appeal RulesRule 59

Cases cited (8)

  • Thiongo v R
    [2004] 1 EA 333
  • David Munyao Mulela & another v Republic
    [2013] eKLR
  • Vincent Kasyula Kingo versus Republic
    Nairobi Criminal Appeal No.98 of 2014
  • Njuki & 4 others versus Republic
    [2002] 1 KLR 771
  • Moses Banda Daniel v Republic
    [2016] eKLR
  • Evans Masese Mose v Republic
    [2006] eKLR
  • Antony Mbithi Kasyula v Republic
    [2015] eKLR
  • Eunice Kalama Jabu v Republic
    [2010] eKLR
On appeal from
High Court of Kenya at Nakuru
H.C. Cr. Appeal No. 254 of 2010 (with Cr. Appeal No. 253 of 2010, consolidated)
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code - second appeal limited to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joshua Atula Atula & another v Republic [2016] KECA 277 (KLR)", Case Analysis (2016). Criminal Appeal No. 133 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/277/eng@2016-08-02

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