1.Qiu Xiaoting, the Appellant, was charged with the offence of Trafficking in psychotropic substances contrary to Narcotics and Psychotropic Substances (control) Act No 42 1994.(Act) Particulars of the offence being that on the 4th day of July, 2018, at Jomo Kenyatta International Airport transit lounge area, gate 10, within Nairobi County, jointly with others not before court, she unlawfully trafficked by conveying 2520 grams of psychotropic substance namely, Methamphetamine, with a market value of Ksh 20,160,000/-concealed in false bottom of her black bag that was checked in, in contravention of the stated Act.
2.Upon being taken through full trial, she was convicted and sentenced to pay a fine of Kenya shillings Forty Million (Ksh 40,000,000/-) and, in default to serve a sentence of one (1) year imprisonment; and, in addition to serve a term of eighteen (18) years imprisonment.
3.Aggrieved by the conviction and sentence, through the firm of Swaka Advocates, the appellant proffered the instant appeal on grounds that: there was no evidence to sustain a conviction; ingredients of the charge were not established; evidence adduced was at variance with the particulars of the charge sheet; the charge was incurably defective; the appellant’s right to a fair trial was contravened; the defence evidence that was verifiable unlike that of the prosecution that was incredible was disregarded; exhibits tendered lacked evidentiary value to the prosecution’s case; the burden of proof of beyond reasonable doubt was not proved; and; that, the sentence imposed was harsh, excessive and untenable.
4.Subsequently, the appellant prosecuted the appeal in person. On the 3rd November, 2022, the appellant made an oral application seeking to abandon the appeal against the conviction and only pursued the appeal against sentence. The appeal was canvassed through written submissions.
5.On the question of interference with the sentence, reliance was made on the case of Makela v the State (135/11) ZASCA 166, where the Supreme Court of Appeal of South Africa held that:
6.Based on the decision, while appreciating that sentencing was solely the discretion of the sentencing court, the appellant urged that the appellate court could interfere with the sentence if there were factors not considered or if the trial court erred in applying set principles as stated in the case of Ogola s/o Owour v Republic (1954) EACA 270.
8.This, according to the appellant was a violation of fair trial. That according to Article 50(2)(p) of the Constitution and Article 29 (a) of the Constitution, an accused person is entitled to the benefit of the least severe of prescribed punishments of an offence hence the trial court should not have deprived the appellant of her right to a least severe punishment.
9.That mitigating factors put forward by the appellant was not considered by the trial court.
10.The Respondent through Prosecution Counsel, Ms. Edna Ntabo urged that in meting out the sentence the trial court exercised the sentencing discretion judiciously and within the confines of the law. Relying on the case of Bernard Kimani Gacheru v Republic(2002)eklr, she urged that the appellant had not demonstrated reasons why this appellate court would interfere with the sentencing discretion of the trial court.
11.With regard to Section 333(2) of the CPC it was noted that the appellant having been in custody during the entire period of trial, the trial court failed to state from which date the sentence would run. The respondent however called upon the court to uphold the decision of the trial court.
12.The duty of this court at the appellate stage must review and re-assess the decision of the trial court so as to come up with an independent conclusion. (See Gabriel Njoroge Kamau v Republic (1987) LLR99).
13.Looking at the back ground of the matter for purposes of considering circumstances in which the offence was committed, the appellant who was travelling from Kenya to China was intercepted at the Jomo Kenyatta International Airport. The police complied with Section 76 of the Act by weighing and sampling of the substance and certificates thereto were duly issued. The substance in issue was found concealed in a makeshift yellow black bag, luggage that belonged to the appellant. The substance was analyzed and proved to be methamphetamine, a psychotropic substance listed in the second schedule of the Narcotic drugs and Psychotropic substances control Act (1994).
15.It is hackneyed that the appellate court can only interfere with the sentence meted out by the trial court if it acted on wrong principles or where the sentence was manifestly excessive. In the case of Bernard Kimani Gacheru v Republic (2002) eKLR the Court of Appeal clearly expressed itself thus:
16.The court has been faulted for not complying with Section 333(2) of the CPC which provides thus:
18.The appellant was arrested on July 4, 2018. The trial proceeded and concluded on October 15, 2019. In meting out the sentence, trial court delivered itself thus:
19.It is apparent that the court did not take into account time spent in custody. Taking into account time spent in remand custody is an obligation. Failure to comply with the law is an infraction of the law which should not be condoned as it contravenes the accused person’s constitutional rights.
20.Looking at the fine imposed, it is less commutation of three times the total value of the substance recovered. Having been trafficking a substance valued at Ksh 20,160,000/- The court would have been expected to impose a fine of Ksh 60,480,000/- However, the respondent did not file a cross appeal for enhancement of the sentence.
21.Before passing sentence the trial court received evidence from the appellant which made it come up with an informed sentence. Looking at the value of the substance, the court would have meted out a life imprisonment but it opted to mete out a definite custodial sentence.
22.The transitional nature of the offence in issue called for a stringent sentence despite the age of the appellant which the court noted and was persuaded not to consider sentencing her to life imprisonment which would destroy her life.
23.The upshot of the above, is that the sentence meted out was not excessive. Therefore, I affirm the sentence save that it will be effective from the date of arrest, the 4th day of July, 2018; having considered time spent in remand custody.
24.And, after serving the sentence she will be repatriated to her country of origin.
25.It is so ordered.