|Criminal Application 189 of 1993
|Dominic Mwalugha v Republic
|23 Dec 1993
|High Court at Mombasa
|Dominic Mwalugha v Republic  eKLR
|Individual v Government
Dominic Mwalugha v Republic
High Court, at Mombasa December 23, 1993
Mbogholi - Msagha J
Criminal Application No 189 of 1993
Bail – Bail pending appeal – application for – issues the Court will consider in such application – whether the fact that the intended appeal has overwhelming chances of success is a relevant consideration.
The appellant was charged with the offence of being in possession of cocaine contrary to rule 9 of Dangerous Drugs Act cap 245 Laws of Kenya. The charge was read to him and he said it’s true, the facts also read to him and he responded that the facts were correct. He was convicted and sentenced to 18 months imprisonment. He thereafter filed an appeal against both conviction and sentence and also bail pending hearing of the said appeal.
He stated that the plea of guilty was not unequivocal that it was not established that he understood the offence preferred against him, that the answer to the charge did not establish his guilt and finally that the sentence was harsh and excessive.
1. The prosecution had the duty, even in a plea of guilty, to prove that the applicant was guilty beyond any reasonable doubt.
2. The subject mater alleged to have been cocaine found in possession of the applicant was not proved as such and no government analysts’ report was produced to the Court and put to the applicant. This showed that the applicant’s report had overwhelming chances of being successful.
Application for bail granted.
Somo v Republic  EA 476
Dangerous Drugs Rules (cap 245 Sub Leg) rule 9
|Application for bail granted
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT AT MOMBASA
CRIMINAL APPLICATION NO 189 OF 1993
DOMINIC MWALUGHA ….………..... APPLICANT
The applicant Dominic Mwalugha was charged with the offence of being in possession of cocaine contrary to rule 9 of the Dangerous Drugs Act 245 Laws of Kenya.
The record shows that the charge was read over and explained to the applicant in English which he said he understood whereupon he said “it is true”. The facts were then stated by the court prosecutor and when the Court asked the applicant if the facts as read were correct he replied “The facts are correct”. He was then convicted and after mitigation was sentenced to serve 18 months’ imprisonment. In effect the applicant was convicted on his own plea of guilty.
The applicant has since filed an appeal (HC CRA No 503 of 1993) against both the said conviction and sentence and the Petition of Appeal is part of the record in the present application. This is an application for bail pending the hearing of the said appeal.
The basic issues raised in the said Petition of Appeal are that the plea of guilty as recorded by the learned trial magistrate was not unequivocal, that it was not established the applicant clearly understood the offence preferred against him, that the answer to the charge did not establish his guilt and finally that the sentence was harsh and excessive.
For the applicant to succeed in obtaining the order sought it must be shown that his appeal has overwhelming chances of being successful. That is the basic test (See – Somo –vs- Republic  EA 476). From what I am able to discern from the record before me I have no doubt that the charge was read over and explained to the applicant by the Court in English which he said he understood. What is in doubt is whether he was asked to admit or deny each and every element of the same (emphasis mine).
The applicant was unrepresented. Rule 9 under which the applicant was charged falls under subsidiary legislation – not the Parent Act. The marginal note thereof read “condition of possession”. The said rule does not create an offence or provide penalty. It would appear therefore that the charge was misplaced.
However, assuming that a proper charge was before the Court the prosecution had the duty, even in a plea of guilty, to prove that the applicant was guilty beyond any reasonable doubt. With profound respect, this appears not to have been the case. The subject matter alleged to have been cocaine found in the possession of the applicant was not proved as such. No government analyst’s report was produced to the Court and put to the applicant.
The foregoing show that the applicant,s appeal has overwhelming chances of being successful. He should therefore not be denied his freedom at this stage. His application for bail pending the hearing of his appeal succeeds.
I order that he may be released in executing a bond of Kshs 10,000/- with one surety in the like sum. He must attend the hearing of the appeal.
Dated and delivered at Mombasa this 23rd day of December, 1993
A.MBOGHOLI - MSAGHA