Mohamed Famau Bakari v Republic [2016] KECA 683 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a drug trafficking conviction but ruled that life sentences under the narcotics law are not mandatory, cutting the sentence to 10 years.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of particulars in a charge of trafficking in narcotic drugs
The charge ought to specify the specific trafficking transaction, but in this case the omission caused no prejudice as the transaction (transportation) was not in dispute and the particulars gave reasonable information of the nature of the offence.
Trafficking under section 2(1) of the Act encompasses twelve distinct activities, so the accused must know which transaction is alleged. Yet section 134 of the Criminal Procedure Code requires only such particulars as give reasonable information of the nature of the offence. Here the evidence and particulars showed the appellant travelling in a matatu with cannabis and Rohypnol; the trial court found trafficking by transporting, the respondent concurred, and the transaction was not in controversy, so no prejudice arose.
Whether trafficking was proved, and whether 'conveyance' means the act of transporting
The appellant was trafficking by transportation. The term 'conveyance' as defined and used in the Act means the means of transport, not the action of transporting; the definition of 'illicit traffic' in section 2 expressly includes transportation.
The court examined the statutory definitions: 'conveyance' is defined as a vehicle, aircraft or vessel used for carriage, i.e. the means of transport, whereas the definition of 'illicit traffic' in section 2(c) expressly lists 'transportation' as an activity. Relying on sections 2(1) and 4 and the circumstances of the appeal, the court agreed the appellant was trafficking by transportation and held the offence proved beyond reasonable doubt.
Whether the sentence under section 4(a) of the Act is mandatory
The sentence is not mandatory. The phrase 'shall be guilty of an offence and liable' indicates a maximum penalty and leaves the court a discretion in sentencing, informed by the quantity and value of the drugs and the accused's record.
Following Daniel Kyalo Muema v R and the Interpretation and General Provisions Act, section 66(1), and sections 26(2) and (3) of the Penal Code, a prescribed penalty means one not exceeding the prescribed maximum unless a contrary intention appears. The Court reiterated in recent decisions (Majabu, Katsui, Kasyula) that 'liable' allows discretion; the maximum may still be imposed for serious drug dealers depending on quantity and value.
Scope of the Court's jurisdiction on second appeal
The jurisdiction on second appeal is limited to matters of law; severity of sentence is a matter of fact and outside that jurisdiction, though an illegal sentence may be corrected. Concurrent findings of fact are not disturbed absent perversity or absence of evidence.
Section 361(1) of the Criminal Procedure Code confines the second appeal to questions of law. The sentence was attacked not on severity but for being illegal, bringing it within the Court's purview. The concurrent findings that the appellant was arrested following a tip-off and the drugs recovered on his person were supported by evidence and were therefore upheld.
Legal principles established
#- Because trafficking under the Act involves distinct activities, the specific transaction a suspect is accused of must be specified in the charge; the accused is entitled as part of fair trial to know the case against him.
- However, a defect in the charge as to the manner of trafficking will not vitiate a conviction where the accused was not prejudiced and the transaction was not in controversy.
- The word 'liable' in section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act does not import a mandatory sentence; it indicates a maximum sentence and leaves discretion in sentencing to the court.
- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law, and severity of sentence is outside that jurisdiction; the Court will not interfere with concurrent findings of fact unless based on no evidence or a perversion of the evidence.
Court orders
#- 1.The appeal on conviction is dismissed
- 2.The appeal on sentence is allowed; the life sentence is substituted with 10 years imprisonment
- 3.In place of the fine of Kshs.1,000,000, a fine of Kshs.10,000 is imposed, in default three months imprisonment
- On appeal from
- High Court of Kenya at Malindi
- Criminal Appeal No. 64 of 2010
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal limited to matters of law)
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, "Mohamed Famau Bakari v Republic [2016] KECA 683 (KLR)", Case Analysis (2016). Criminal Appeal No. 64 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/683/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.