REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG'A HCCRA NO. E077 OF 2024 HARUN GATONYE KINUTHIA………………………………………..……APPELLANT -VERSUSREPUBLIC……...………..……………………………………….…….… RESPONDENT JUDGMENT 1. The Appellant herein was charged with the offence possession of cannabis sativa contrary to section 3(1) and 2(a) of the Narcortic drugs and Psychotropic substances control Act No. 4 of 1994. 2. The particulars of the offence are that on 19 th day of February 2024 at around 1230hrs at Ndikwe along the Nikwe-Kiria road within Murang'a County the Appellant was found in possession of 29 sachets and 250 grams of cannabis valued at Kshs 3000/= which was not prepared for medical use. 3. The appellant was found guilty and convicted. Dissatisfied with the conviction he lodged this Appeal through a memorandum of appeal, raising the following grounds: 4. The learned trial magistrate completely failed to note the contradiction in the prosecution witnesses and only considered one which he dismissed as inconsequential by trying to fill in the gaps created therein. 5. That the learned trial magistrate erred in law and fact by finding his conviction and sentence without humbly considering that the officer from the government chemist who tested the alleged substance was not called to testify as to the authenticity of the document produced in court pursuant to section 33 of the evidence act. 6. The learned trial magistrate conducted this trial unprocedurally by not giving a chance to the unrepresented accused a chance to submit at the close of prosecutions. 7. The learned trial magistrate erred in law and fact by admitting a report of the forensic examiner without calling the maker and yet this could not cause any unnecessary delay. 8. That the learned trial magistrate erred in law and fact by finding his conviction and sentence without humbly considering his reasonable defence evidence. 1|Page MURANG’A HCCRA E077 OF 2024
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9. The sentence of (9) years 2 Months imprisonment without an option of fine was manifestly excessive in all circumstances of this case without taking into consideration the mitigation offered by the Appellant and his age of 73 years. 10. The Learned Magistrate erred in law and in fact when he failed to consider the period that the Appellant had served in custody when passing the sentence pursuant to Section 333(2) of the Criminal Procedure Code. 1) THAT, I wish to be present during the hearing and the determination of this matter. 11. He prays that this appeal be allowed, conviction quashed and sentence set aside and he be set at liberty in his submissions, he lays a lot of emphasis on the reduction of the sentencing and section 354(3)(b) of the Criminal Procedure Code. 12. In Wanjema v Republic [1971] EA 493 It was held that; "An appellate court may interfere with a sentence where it is shown that the trial court: 1) 2) 3) 4) Acted on wrong principles, or Failed to consider relevant factors, or Took into account irrelevant factors, or The sentence is manifestly excessive in the circumstances. 13. He argues that his right to mitigate was never considered. It is his case that he is 72 years old and he has fully rehabilitated. 14. He also argues that he’s suffering from poor health and weak immunity and the long imprisonment amounts to a violation of article 29 of the Constitution since the punishment is cruel and degrading. 15. He relies on the Judiciary sentencing policy guidelines. He is also invoking Section 333 of the criminal procedure code, inviting the court to consider the term serve. 16. He strongly believes that the punishment has achieved its purposes of rehabilitation. He is remorseful. He believes that the punishment is too harsh. 17. Reliance is placed in the case of Ogolla so Owuorv Republic [1954] EACA 270 where it was provided that the "Failure to consider advanced age as a mitigating factor amounts to overlooking a material factor, thereby opening the door for appellate interference with sentence". 18. He believes that this is his case. 2|Page MURANG’A HCCRA E077 OF 2024
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The Respondents Case; 19. The appeal is opposed. It is the respondent Case that PW one and PW two followed the leads to where the appellant and recovered 29 satches of cannabis sativa. 20. The two witnesses corroborated themselves. 21. Section 77 of the Evidence act states as follows;'In criminal proceedings any document purporting to be report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it" 22. It is the respondent’s case that they report was properly produced by PW one. Analysis and Determination; (i) 23. The issue for determination is whether the appeal has merit. In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004 the Court of Appeal sitting in Kisumu held inter alia that:- “In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that”. 24. The appellant made no submissions on most of the issues that he had raised in his memorandum of appeal. 25. He advanced the issues of mitigation, sentencing, and the times spent in custody. 26. Section 3 (1) of the Narcotic drugs and Psychotropic substances control Act No. 4 of 1994 provides that Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence. 27. (2)(a) a person guilty of an offence under subsection (1) shall be liable— 3|Page MURANG’A HCCRA E077 OF 2024
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(a) In respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment for ten years and in every other case to imprisonment for twenty years. 28. The court is persuaded that the conviction was legally sound given that PW1 and PW 2 testified and brought out a case beyond reasonable doubt proving that on 19th day of February 2024 at around 1230hrs at Ndikwe along the Nikwe-Kiriaroad within Murang'a County the Appellant was found in possession of 29 sachets and 250 grams of cannabis valued at Kshs 3000/= which was not prepared for medical use. 29. The accused person did not possess the cannabis sativas that he was in possession of for the purposes as envisioned under Section 3 (3) given that he is not a medical practitioner, a dentist, veterinary doctor, is not licensed or authorized by the said Act to be in possession of cannabis sativa. 30. The proceedings show that the accused was convicted of 2 similar offences. 31. In Criminal Case No.1322 of 2019 accused was charged under the name Haron Gitonga On13th September, 2019 for the offence of being in possession of bhang, to wit, 2 sachets of cannabis and he was fined accused Kshs.50,000/= in default 1 year imprisonment on 19/9/2019. 32. The record shows that the trial court considered the Probation Officer's Report and arrived at the conclusion that the appellant was not suitable for a noncustodial sentence as he was a repeat offender. 33. This was demonstrated by the prosecution that in Criminal Case No.529 of 2018 where accused was charged under the name Harun Gatonye for the offence of being in possession of cannabis to wit, 6 sachets of bhang where he was convicted accused. 34. The appellant was later fined Kshs.200,000/= in default 2 years imprisonment. He served the default sentences in both files as he could not raise fine. 35. In Criminal Case No.529/18, the sentence was later revised by the High Court to one year probation. It was during the probation that her committed the offence Criminal 1322/2019. 36. The trial court considered the nature and circumstances of the offence and heard the appellant’s mitigation. 4|Page MURANG’A HCCRA E077 OF 2024
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37. The court is satisfied that the trial court considered all the mitigating factors before sentencing their appellant to serve the time meted out on him. He appears to be a drug handler who must not get the leniency of this court. 38. The court did not fall into error in arriving at the conviction and the sentencing. 39. He is not a first offender. 40. The court takes cognizance of the effects that Narcotic drugs and Psychotropic substances have on the children and young adults in this country. The criminals who are handling or taking drugs must not remain in the society. They are better off in the institutions where they pose no threat to the health and life of innocent children who are faced with the threat of passive smoking and subsequent addiction. 41. The appellant has not demonstrated how he has reformed despite his age and health status. Determination; 42. The appeal is devoid of merit. Order; The appeal is hereby dismissed. Dated, Signed and Delivered Virtually at Eldoret this 14th day of July 2026. ……………………………….. J. CHIGITI (SC) JUDGE 5|Page MURANG’A HCCRA E077 OF 2024
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