1.The Appellant was charged, tried convicted and sentence to a fine of Kshs 300,000/= in default to serve five years imprisonment, for the offence of Trafficking Narcotic Drugs Contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic substances Control Act No 4 of 1994.
2.Being dissatisfied by the said conviction and sentence, he filed this appeal and raised the following grounds of appeal;a.The sentence was excessive and harsh despite the Appellant having been convicted of a lesser offence.b.The Court erred in fact and law in failing to consider the Appellant’s mitigation.c.The Court failed to call for pre-sentencing report to assist it in arriving at appropriate sentence before dismissing the Appellant mitigating family issues.d.The trial Court erred in both law and fact in sentencing the Appellant to serve a sentence of five years imprisonment with the option of a fine of Kshs.300,000/=.e.The trial Court convicted the Appellant based on her personal views and opinion which were not backed evidence on record nor applicable law and authorities in support thereof.
3.The appeal was conversed by way of written submissions. On behalf of the Appellant, it was submitted that the chain of custody of the substance was not established and that having found that trafficking was not proved, the Appellant should have been acquitted rather than convicting him on a lesser which he was not charged with, without giving him an opportunity to defend himself thereof Contrary to Article 50 of the Constitution.
4.It was contended that the Court ought to have been guided by the provision of Section 214 of the CPC and amended the charge sheet so as to grant the Appellant the opportunity to challenge the said offence as was noted in Wanjiru v Republic  KEHC 12777.
5.It was contended that the Appellant’s defence including the existence of a grudge which could have led to his arrest, was not considered as it raised reasonable doubt which would have led to his acquittal. It was submitted that the sentence of five years and a fine of Kshs.300,000/= was above the statutory provision of not more than one hundred thousand and was harsh, oppressive and excessive taking into account that the Appellant was a first offender and that in failing to call for pre-sentencing report the Court fell into error.
6.It was submitted that should the Court find no merit on the appeal, then the Court should adopt Section 3 (2) of the Community Service Order Act No 10 of 1998 noting that he had been imprisonment for over two years and was of good behaviour.
7.On behalf of the Respondent, it was submitted that once it was established that the substance recovered from the Appellant was cannabis sativa not in its medicinal preparation, the onus of the prosecution was to prove that the same was found in possession or control of the Appellant while being trafficked. It was contended that the fact of possession was proved beyond reasonable doubt, which finding of fact should not be interfered with as was stated in James Mwebia Mirwara v Republic  eKLR
8.On the power of the Court to convict the Appellant on a cognate offence without affording the same opportunity to address the issue, it was submitted that the same was properly convicted under Section 179 of CPC as was confirmed in Rashid Mwinyi Nguisa & another v Republic  eKLR and as stated in David Mwangi Njoroge v Republic  eKLR where the Court said that the offence substituted must be cognate and minor to the offence that an accused was initially charged with.
9.It was contended that the defence put forward by the Appellant of a past grudge and non-payment of a wage by the chief did not raise doubt in the prosecution case and that the defence was an afterthought.
10.On sentence it was contended that the trial Court was not bound to impose the minimum sentence and that sentencing was at the discretion of the Court as was stated by the Court of Appeal in Robert Mutungi Muumbi v Republic  eKLR to the extent that on appeal, the Court will only interfere with the same if the trial Court took into account irrelevant factors and that the same is manifestly excessive. It was contended that the penalty provided for was ten years if the same is for own consumption and that the Court considered the mitigation in reaching the sentence herein which the Court was urged not to interfere with.
11.This being a first appeal the Court is required to re-evaluate the proceeding before the trial Court and to come to its own determination thereon while giving an allowance to the fact that unlike the trial Court it did not have the advantage of seeing and hearing witnesses as was stated in the case of Okeno v Republic  E.A. 32.
12.It was the evidence of PW1 Samuel Gachie,the Assistant Chief of the area that they had received information on two men who were selling bhang at Kayole village on 15th May 2017 and acting on the said information together with the area Chief they arrested the Appellant and his co-accused who upon search had a black bag in which ten bundles of ten rolls each at a value of Kshs.3,000/=, were recovered. This evidence was corroborated by PW2 Charles Muna Kimani, the Chief who called APC Thiongo, who re-arrested the Appellant and took him to the police station and handed him over to PW3 PC John Solomon, who testified that he was the Investigating Officer and produced in Court the exhibit and report allegedly from the Government Chemist, confirming that it was bhang.
13.When put on his defence the Appellant gave unsworn statement and stated that on the material day he went to Kayole to get his child who had been arrested with iron sheets but was arrested by the Chief Nyambura whom they had worked for in 2015 but declined to pay them, so they reported her to the County Commissioner who ordered her to pay them upon which she warned them to the effect that “ they will pay” .
14.She took him to the police station and asked PW2 where the goods were and he produced a black bag whose content he did not know and which they said was bhang, the possession of which he was charged with.
15.In convicting the Appellant, the Court found as a fact that there was no evidence adduced with regard to trafficking but that the evidence pointed to possession and proceeded to convict the same under the provision of Section 179 (1) of the Criminal Procedure Code for the lesser offence of possession under Section 3 of the Narcotic and Psychotropic Substance Control Act and sentence the Appellant to a fine of Kenya shillings three hundred thousand (Kshs.300,000) or to serve five (5) years in prison.
Analysis And Determination
16.From the proceedings and submissions herein, and having analysed the same as I am under law required to do herein above, I have identified the following issues for determination:a.Whether the prosecution case against the Appellant was proved beyond reasonable doubt.b.Whether the Appellant’s defence was considered.c.Whether the Court erred in convicted the Appellant to a lesser offence rather than the one he was charged with.d.Whether the sentence herein was harsh oppressive and excessive.e.Whether the Appellant is entitled to the relief under Section 3(2) of the Community Serviced order.
17.For the purposes of this appeal I will start with the issue of community service order. It is clear from the record that the Appellant was sentenced to a term of five years and as submitted by the Appellant to be entitled to community service order under the Act should not exceed three years and neither did the Court determine a term for three years or less in as much as the Appellant has served two years. It is also clear that the said order cannot be exercised by this Court while clothed with the appellate jurisdiction. I therefore find no merit on this ground of appeal and submissions thereon which I hereby dismiss.
18.On the proof of the prosecution case, I note that the Appellant was un-represented and therefore the Court was under a duty to safeguard his rights to free and fair trial. Of great concern to the Court is how the report from the Government Chemist was produced by the Investigating officer without any foundation thereon being laid down by the prosecution under Section 33 and 77 of the Evidence Act and whereas Section 67(1) and (2) of the Narcotic Drugs and Psychotropic Substance Act provides that the result of the analysis or examination , shall be admissible in evidence and shall be prima facie evidence of the statements contained in the certificate, I take the view that where the accused is not represent, the Court ought to safeguard their rights and or offer an explanation thereon.
19.In this finding I am in the good company of the Court in Dadius Mokaya Chetu v Republic  eKLR in which while allowing the appeal the Court stated that PW3 who produced that report did not testify that he knew the analyst or his qualification in order to meet the test for authenticity under Section 77 of the Evidence Act and therefore the report could not be relied upon top support conviction unless a proper basis was laid.
20.It is also clear from the evidenced tender that the procedure under Section 74A of the Act was not followed when the Appellant was arrested as there is no evidence that the drug was weighed and an explanation given on how the samples was obtained as was stated by the Court of Appeal in Moses Banda Daniel v Republic  eKLR.
21.The Appellant had raised a defence of the existence of a grudge between him with the Chief, the trial Court did not analyse the said defence and there is nothing on record whether the same was dismissed. The only thing as regards the Appellant from the record is a finding which is not supported by the evidence on record to the that the accused was at the scene, without specifying which scene.
22.On the basis of the matters herein I have come to the only logical conclusion and find that the Appellants conviction was not safe and would proceed to allow the appeal quash the conviction and set aside the sentence. The Appellant shall be set free forth with unless otherwise lawfully held.
23.Had the appeal failed on conviction, I would not have interfered with the sentence as Section 179 as rightly submitted by the prosecution allows the Court to convict of as lesser cognate offence as was elaborated in the case of Rashid Mwinyi Nguisa & Another v Republic (supra), submitted by the prosecution. The trial Court can therefore not be faulted in convicting the Appellant on the same.
24.There was no requirement for the charges under the lesser offence to be read to the Appellant and a new charge drawn so as to call upon the Appellant to answer to the same, it is upon the trial Court to determine based upon the evidence tendered if a lesser offence was proved. The authority submitted by the Appellant of Wanjiru v Republic (supra) is distinguishable from the fact of this case as it applies to the framing of the charge sheet and therefore his contention that he ought to have been discharged upon failure to prove the charge of trafficking has no merit.
25.In the final analysis I allow the appeal herein on both conviction and sentence, which I hereby quash and set aside. The state has a right of appeal, while the Appellant has a right to celebrating early Christmas.
26.And it is ordered.