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|Case Number:||Criminal Appeal 9 ‘B’ of 2011|
|Parties:||ZERUYA KWALA NDANYI v REPUBLIC|
|Date Delivered:||08 Dec 2011|
|Court:||High Court at Eldoret|
|Citation:||ZERUYA KWALA NDANYI v REPUBLIC  eKLR|
|Case History:||Being an appeal from the decision of Hon. A. Onginjo, Senior Principal Magistrate, dated 7th January, 2011 at Eldoret Chief Magistrate’s Court Criminal Case Number 85 of 2011|
|Disclaimer:||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|
IN THE HIGH COURT OF KENYA AT ELDORET
[Coram: Azangalala, J]
Zeruya Kwala Ndanyi, the appellant herein, was charged with being in possession of a narcotic drug contrary to section 3(1) of the Narcotic Drugs and Psychotropic Substances Act No. 4 of 1994 as read with section 2 (A) of the same Act, before Eldoret Chief Magistrate in Criminal Case No. 85 of 2011. It was alleged in the charge particulars that on 6th January, 2011 at Kambimoto Village, Lumakanda Location in Lugari District within Western Province the appellant was found being in possession of narcotic drugs namely, bhang to wit 4 kilograms, with a street value of Kshs. 8,000/- which is meant for medicinal preparation.
By the time of plea, the Government Chemists Report had not been received.
The appellant admitted those facts and the Learned Senior Principal Magistrate convicted her as charged.
In mitigation, the appellant stated that she used the drug as a herb for treating her sick child. The Learned Senior Principal Magistrate considered the appellant’s mitigation and in sentencing her to 2 years imprisonment she stated:-
It is from the foregoing that the appellant comes to this court by way of appeal against sentence only. She has repeated that she was misled into believing that the drug would cure her child. She has added before me that she is a single parent of five (5) children who all depend on her.Those new circumstances were not stated to the Learned Senior Principal Magistrate when she sentenced the appellant to two (2) years imprisonment. I am satisfied that had the additional personal circumstances of the appellant been known to the Learned Senior Principal Magistrate, she would probably have meted out a less severe sentence than the one she imposed upon the appellant. I will in the circumstances interfere with the sentence. In my view the period of about six (6) months the appellant has been in custody has taught her a lesson as she appeared remorseful when she appeared before me. Accordingly, I allow her appeal against sentence and set aside the sentence of two (2) years. The same is substituted with a sentence of imprisonment for the period already served.
It is so ordered