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Court of AppealPartially AllowedCriminal Appeal No. 45 of 2014· [2016] KECA 694 (KLR)

Daniel v Republic (Criminal Appeal 62 of 2015) [2016] KECA 694 (KLR)

Court of Appeal of Kenya
11 March 2016
1,974 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a drug trafficking conviction but reduced a life sentence to ten years because the sentencing law is discretionary, not mandatory.

What this practically means

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Executive summary

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The appellant was convicted by the Malindi Chief Magistrate of trafficking in narcotic drugs contrary to section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act and sentenced to life imprisonment plus a fine of Kshs.1,000,000. His first appeal to the High Court (Meoli, J) was dismissed, and he appealed to the Court of Appeal at Mombasa on two points of law: that the procedure on seizure of drugs under section 74A of the Act was not followed, and that his defence was ignored. The Court held that although the section 74A issue was raised for the first time on second appeal, being a matter of law it was properly entertainable. On construction of section 74A, informed by the Hansard record of 6th December 2000 showing Parliament's intention to prevent tampering with drug exhibits, the Court held the procedure to be directory rather than mandatory, given the phrases 'where practicable' and 'if any'. Where only 23 small sachets valued at Kshs.2,300 were recovered, subjecting them to the elaborate procedure was not practicable and there was no violation. The claim that the defence was ignored was also rejected. However, the Court found that the courts below erred in importing mandatory language into section 4(a) of the Act, which this Court had authoritatively interpreted as discretionary. The appeal on conviction was dismissed but the appeal on sentence was allowed: the life sentence and fine of Kshs.1,000,000 were set aside and substituted with ten years imprisonment and a fine of Kshs.10,000, in default three months imprisonment.

Key legal issues

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01

Whether section 74A procedure on seizure of drugs is mandatory or directory

Holding

It is directory; the phrases 'where practicable' and 'if any' show the procedure is not mandatory and non-compliance is not fatal absent prejudice.

Reasoning

The court construed section 74A, introduced by the Statute Law (Misc. Amendment) Act No.2 of 2002, using the mischief revealed in the Hansard of 6th December 2000: to prevent interference with drug exhibits. The words 'where practicable' and 'if any' indicate flexibility. Given the small quantity involved (23 sachets valued at Kshs.2,300), applying the elaborate procedure was not practicable and no violation occurred.

p. 3
02

Whether a point of law may be taken for the first time on second appeal

Holding

Yes; the section 74A issue, being a matter of law, could properly be taken for the first time in this second appeal.

Reasoning

The issue was not raised at trial nor in the eight grounds in the High Court, but the Court of Appeal held that because it concerns procedure and matters of law within its section 361 jurisdiction, it could be entertained on second appeal despite being raised late.

p. 3
03

Whether the sentence imposed was lawful

Holding

The life sentence and fine were erroneous because section 4(a) of the Act is discretionary, not mandatory.

Reasoning

Counsel for the respondent conceded, and the Court agreed, that the courts below misdirected themselves by importing mandatory language into section 4(a), contrary to the Court of Appeal's authoritative interpretation in Kabibi Kalume Katsui v R and its departure from Chukwu v R in Daniel Kyalo Muema and Gathara. The sentence was varied to ten years imprisonment and a fine of Kshs.10,000.

p. 4
04

Whether the appellant's defence was ignored

Holding

The contention was rejected; the defence was considered in detail by the courts below.

Reasoning

The Court found no substance in the claim that the defence was ignored, noting the trial court had given the appellant's sworn defence detailed consideration, and that concurrent factual findings are not open to review on second appeal under section 361 of the Criminal Procedure Code.

p. 4

Legal principles established

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  • The procedure under section 74A of the Narcotic Drugs and Psychotropic Substances (Control) Act is directory, not mandatory; non-compliance does not vitiate proceedings where no prejudice is caused or there is substantial compliance.
  • Sentence under section 4(a) of the Act is discretionary, not mandatory.

Court orders

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  1. 1.Appeal on conviction dismissed
  2. 2.Appeal on sentence allowed; life imprisonment and fine of Kshs.1,000,000 set aside
  3. 3.Substituted sentence of ten (10) years imprisonment and a fine of Kshs.10,000, and in default three (3) months imprisonment

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 4 (section 4(a))
  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 72
  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 74A
  • Narcotic Drugs and Psychotropic Substances (Control) ActFirst Schedule
  • Criminal Procedure Codesection 361
  • Statute Law (Misc. Amendment) ActNo.2 of 2002

Cases cited (7)

  • Tumaini Hamadi v R
    Criminal Appeal No.45 of 2010
  • Hamida Hamisi and another v R
    Criminal Appeal No.42 and 43 of 2009
  • Dzombo Mataza v R
    Criminal Appeal No.22 of 2012
  • Kabibi Kalume Katsui v R
    Msa Criminal Appeal No.90 of 2014
  • Chukwu v R
    Criminal Appeal No.257 of 2007
  • Daniel Kyalo Muema v R
    Cr. Appeal No.479 of 2007
  • Gathara v R
    (2005) 2 KLR 58
On appeal from
High Court of Kenya at Malindi
null
Jurisdiction invoked
Section 361 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 (1)

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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, "Daniel v Republic (Criminal Appeal 62 of 2015) [2016] KECA 694 (KLR)", Case Analysis (2016). Criminal Appeal No. 45 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/694/eng@2016-03-11

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