REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

HIGH COURT CRIMINAL APPEAL NO. 105 OF 2015

(CORAM:  J. A. MAKAU – J.)

   PAUL OTIENO MUSUMBA ............. APPELLANT

VERSUS

REPUBLIC …................................ RESPONDENT

(Being an appeal against both the  conviction and the sentence in Criminal Case No. 580 of 2015 in Ukwala Law Court before Hon. R.M. Oanda – S.R.M.)

JUDGMENT

      1.      The Appellant PAUL OTIENO MUSUMBA faced three counts of being in  possession of uncustomed goods c/s 200 (d)(iii) as read with Section 210 (c)  and Section 213 of the East African Community Customs Management Act          2004.  The particulars are that on 11th day of November, 2015 at Udira  Kamrembo Market in Ugenya Sub-county within Siaya County was found being  possession of a twenty bundles Super match Kings Cigarettes valued at              Shs.20,000/= in contravention of the East African Community Customs Management Act 2004.  He faced Count II of being in possession of counterfeit  goods contrary to Section (32) (a) as read with Section 35(1)  (a) of Anti-  counterfeit Act No. 13 of 2008. The particulars are that on 11th day of November, 2013 at Udira Kamrembo Market in Ugenya Sub-county within Siaya County without authority of Mastermind Tobacco Kenya Limited the owner of   intellectual property right was  counterfeiting twenty bundles of Supermatch cigarettes valued at Kshs.2000/= by removing labels of packages to conceal the  identity and the origin of the said products of Mastermind Tobacco Kenya   Limited.  The appellant was also charged with count III conspiring to contravene  provisions of the East African Community Customs Management Act 2004 contrary to Section 193 of the East African Community Customs   Management Act 2004.  The particulars of the offence are that on the 11th day of  November, 2015 at Udira Kamrembo Market in Ugenya Sub-county within Siaya  County conspired  to contravene provisions of the East African Community  Customs Management Act 2004 contrary to Section 193 of the East African  Community Customs Management Act 2004 by unlawfully having twenty bundles  Ugandan Cigarettes.

                       2.   That when charge was read to the appellant he replied, true.    The prosecution

                              proceeded to give the facts of case and stated:

                                      “---- facts as per charge sheet the exhibits are proof in Court – exhibit P1”

           3.     The learned trial Magistrate did not seek admission or rejection  of the facts but  proceeded to convict the appellant on what he termed as appellant's own admission.

             4.    The learned trial Magistrate then sentenced the appellant on count 1 to pay a

               fine of Kshs.10,000/= in default to one (1) year imprisonment, on Count II he  discharged the appellant under Section 35(1) of the Penal Code and on Count III the Appellant  was imprisoned to serve six (6) months imprisonment and  sentence to run consecutively.

          5Aggrieved by the conviction and sentence the appellant was provoked to prefer the   appeal setting out 4 grounds of appeal as follows:

                             “a)  The Learned Magistrate erred in law and in fact and misdirected  himself by sentencing the accused based on an unequivocal plea.

              b)   The Learned Magistrate misdirected himself in fact and in law by no appreciating that the charge against the Appellant was defective.

             c)    The Learned Magistrate erred in law and in fact by failing to indicate in  writing the language of the Court at the time the plea was taken.

                        d)   The Sentence imposed by the Learned Magistrate is manifestly excessive.

              6.   Mr. Ojuro Learned Advocate appearing for the appellant while State was  represented by M/s. Odumba Learned State Counsel.

          7. Mr. Ojuro on behalf of the Appellant submitted that the trial Magistrate was in  error in convicting the Appellant and sentencing him on an unequivocal plea;  and/or a defective charge.  That the Court was in error in failing to indicate the  language of Court at the time of plea taking and in imposing a manifestly  excessive sentence.

8. The Learned State Counsel M/s. Odumba on her part conceded the charge sheet  was defective on all counts and conceded the appeal.

9. On Count I under Section 200 of the Act, deals with imports or  Coastwise or  exportation or puts goodson board any aircraft, vehicle or vessel.  Section 213  deals with Police powers seize and detain any aircraft, vessel, vehicle, goods etc. The particulars of the charge do not state that the goods were found in any of  the condition set out in Count 1.  There is variance between the charge sheet and    the particulars.  In  my view the charge is defective.

10.  On Count II, the appellant was allegedly counterfeiting twenty bundles of Super  Match cigarettes, by removing labels of  packages to conceal identity and origin of the said products of Mastermind Tobacco Kenya Limited.  That other than  removing labels the particulars do not state that the appellant was in possession or control in the course of trade any counterfeits goods.   The removing of labels of   packages to conceal the identity and the origin may be unlawful but that do not   make the goods counterfeit goods in terms of Section 32 (a) of Anti-Counterfeit   Act No. 13 of 2008 and Section 2 which deals with counterfeiting.  The charge  should have stated that there was labeling or making after removing of the label in  the course of trade.  Particulars of the charge did not comply with Section 2 and  32 of the Anti-Counterfeit Act and  as such it is defective.

11.  On Count III on conspiring to contravene Section 193 of the East African Community Customs Management Act 2004, the particulars do not indicate   with whom the appellant had conspired to contravene  the provisions of relevant Act.  Section  193 of the East African Community Customs Management   Act 2004 is very clear that a suspect must conspire with another person or persons  to contravene provisions of the Act.  One cannot considerer alone.  The charge in my view was also defective.

12.     The State Counsel conceded the Appeal and rightly so as the charges were  defective.  That being the case the plea taken was based on a defective charge and    was not unequivocal plea of guilty.  The Learned trial Magistrate was in error  by failing to appreciate the charge against the appellant was defective and as such  no plea could be taken against the appellant.

13. It is significant in this appeal to note facts of the case were not given in regard of  the three counts.  That should have been done instead of the prosecution stating     facts as per the charge sheet.  Facts in criminal cases are details of the particulars   of the charge which are usually a summary as per charge sheet.  A party who is charged is entitled to full details of the charge so as to reconsider them and  respond to them either admitting or denying them.  The trial Court cannot in my   view convict the accused until facts are given and admitted.

14.  In the instant case facts were not given nor the appellant given an opportunity to  admit or deny the facts but  was erroneousness convicted without admitting the facts.The appellant was in my view sentenced by trial Court erroneously.

15. The trial Magistrate also made an order that the sentenced to run consecutively. In Count I, he had fined the appellant Kshs.10,000 in default to serve  imprisonment for 1 year and in Count III to serve six months imprisonment.  That if the appellant had failed to pay the fine did it mean sentence in the second count would start running from that he would have paid the fine or serving the 1 year     imprisonment.The offences arose out of one transaction and on conviction the sentence should have been ordered to run concurrently.  The longest sentence that  the appellant should have been ordered to serve should have been 1 year but not 1     ½ years as ordered.

16.  In the instant case the Court did not make an order for forfeiture or payments   of duty upon conviction of the appellant and that was an error on the part of the  trial Court. Section 201 of The East African  Community Customs  Management Act  – provides:

 “201.  Where on conviction for an offence under this Act, a person is liable to pay a  fine, that person shall, unless the goods are prohibited goods or are ordered to be forfeited   under this Act, pay duty on the goods in addition to the fine.”

 The Court's judgments is silent or what become to the goods found in possession of  appellant contrary to Section 201 of the East African Community Customs  Management Act.

17.     Having come to the conclusion,  I have, 1 find that the conviction and sentence  imposed upon the appellant was unsafe and unsatisfactory.   That as the goods  found with the appellant were not proved to be prohibited goods or attracted unpaid duty,  I therefore order the same to be released to the appellant forthwith.  I  hereby quash the conviction and set aside the sentence on all counts.  The Appellant is set at  liberty forthwith unless lawfully held.

 DATED, SIGNED  AND DELIVERED AT SIAYA THIS 3RD DAY OF DECEMBER,   2015.

J. A. MAKAU

JUDGE

DELIVERED IN OPEN COURT THIS  3RD  DAY OF DECEMBER, 2015.

In the presence of:

Mr. Odumba State Counsel – present

Appellant – Present

Court Clerk - O. K. Akwany

Court Clerk - Mohammed Akideh

J. A. MAKAU

JUDGE