Okello & another v Republic (Criminal Appeal 10 of 2015) [2023] KECA 1154 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a drug trafficking conviction but reduced the life sentence to 25 years, confirming that drug sentences carry judicial discretion.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants' alibi defence was considered by the High Court
- 2.Whether the sentence imposed by the trial court and upheld by the High Court was legal
Key legal issues
#Whether the appellants' alibi defence was considered by the courts below
The alibi was considered and found incredible; the defence failed on cross-examination.
The Court noted the High Court's express finding that the trial magistrate considered the defence and found it incredible. On cross-examination the 1st appellant did not know the ward his sister was in despite claiming four years' residence in Nakuru, and the 2nd appellant did not know the road to Langalanga, the neighbouring estate, or KANU street despite claiming to sell shoes there. The Court held both courts below correctly found the alibi incredible, and as second appellate court it would not disturb those concurrent findings.
Whether the life sentence under section 4(a) of the Act was mandatory and therefore legal
Section 4(a) is not mandatory; the Court exercised its discretion and substituted 25 years' imprisonment plus a fine of Ksh 1,000,000 with 3 years' imprisonment in default.
Adopting Caroline Auma Majabu v Republic, the Court held the word 'shall' in section 4(a) relates to guilt and 'liable' to sentence, importing maximum not mandatory penalties, per Opoya v Uganda and section 66(1) of the Interpretation and General Provisions Act. Counsel had mitigated that the appellants were remorseful family men and sole breadwinners. Weighing the mitigation and the value of the subject matter, the Court set aside life imprisonment and substituted 25 years plus a fine.
Whether the Court could determine the non-compliance with section 86 of the Act (valuation of the drug) raised for the first time on second appeal
No; the issue was not raised before the trial court or the High Court and the Court declined to entertain it.
A glance at the record showed the valuation issue emerged for the first time in the second appeal. Guided by the limits of its mandate under section 361 of the Criminal Procedure Code and John Kariuki Gikonyo v Republic (citing Alfayo Gombe Okello v Republic), the Court declined to determine issues not raised at the earliest opportunity where there was no opinion by the two courts below on them.
Legal principles established
#- On a second appeal, the Court of Appeal considers matters of law only and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of evidence, or wrong principles
- The word 'shall' in section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act relates to guilt, while 'liable' leaves judicial discretion in sentencing; the sentence is not mandatory
- A second appellate court will not determine issues raised for the first time on appeal which could and should have been raised before the courts below
Court orders
#- 1.Dismissal of each appellant's appeal against conviction
- 2.Setting aside of the sentence of life imprisonment imposed by the trial court and upheld by the superior court
- 3.Each appellant shall serve 25 years imprisonment
- 4.The sentence shall run from the date of incarceration, if they remained in remand during trial
- 5.Each appellant shall pay a fine of Ksh 1,000,000/- and in default serve an additional 3 years imprisonment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Appeal against conviction
The two courts below considered the appellants' alibi defence and correctly found it to be incredible
Determination of the section 86 valuation issue raised for the first time on second appeal
The issue was not raised at the earliest opportunity before the courts below and fell outside the Court's mandate on a second appeal
Costs
No costs order was made; the judgment contains no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we find no merit in the appeal against the conviction of the appellants. Accordingly, we dismiss each appellant's appeal against conviction.
Each appellant shall serve 25 years imprisonment.
Each appellant shall also pay a fine of Ksh 1,000,000/- (one million) and in default, shall serve an additional 3 years imprisonment.
In our view, the word 'shall' is used in relation to the guilt of the offender and the word used in relation to the sentence is 'liable'.
we are disinclined to address matters where there is no opinion by the two courts below on new issues introduced for the first time on a second appeal.
existence of inconsistencies and contradictions do not per se, vitiate the prosecution case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello & another v Republic (Criminal Appeal 10 of 2015) [2023] KECA 1154 (KLR)", Case Analysis (2023). Criminal Appeal (second appeal from Nakuru High Court Criminal Appeal; trial in Magistrate's Court before W. Korir SPM). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1154/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.