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|Case Number:||Criminal Appeal 34 of 2014|
|Parties:||Omar Bakari Mwakuro v Republic|
|Date Delivered:||13 May 2014|
|Court:||Court of Appeal at Malindi|
|Judge(s):||Hannah Magondi Okwengu, Milton Stephen Asike-Makhandia, Fatuma sichale|
|Citation:||Omar Bakari Mwakuro v Republic  eKLR|
|Case History:||Appeal from Judgment of the High Court of Kenya at Malindi (Meoli,J) dated 11th June, 2012 In HCCRA No. 69 of 2012|
|Parties Profile:||Individual v Government|
|History Docket No:||HCCRA 69 of 2012|
|History Judges:||Christine Wanjiku Meoli|
|Case Outcome:||Appeal Dismissed|
|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 COURT OF APPEAL
(CORAM: OKWENGU, MAKHANDIA, SICHALE, JJ.A)
CRIMINAL APPEAL NO. 34 OF 2014
OMAR BAKARI MWAKURO...................................................APPELLANT
(Appeal from Judgment of the High Court of Kenya at Malindi (Meoli,J) dated 11th June, 2012
HCCRA No. 69 of 2012)
JUDGMENT OF THE COURT
 Omar Bakari Mwakuro who is the appellant before us was charged with the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substance (Control) Act No. 4 of 1994. He was convicted by the Chief Magistrate Malindi on his own plea of guilty. He was sentenced to life imprisonment in addition to a fine of Kshs.one million. Being dissatisfied he appealed against his conviction and sentence to the High Court. His appeal was dismissed by the High Court sitting at Malindi (Meoli, J). He has now come before us appealing against the judgment of the High Court and seeking to have his conviction quashed and sentence set aside.
 The appellant has filed two sets of grounds of appeal. The first set which was filed by the appellant in person on 28th January, 2014 raised three grounds as follows:
 The second set of grounds of appeal was filed by the appellant in person when he filed submissions in support of his appeal. Four grounds of appeal were raised as follows:
 Ideally the appellant ought to have either withdrawn one set of the grounds of appeal or treated the second set as supplementary grounds of appeal. However, we appreciate that the appellant was unrepresented, and therefore we shall concentrate on the substance of the appeal and treat the second set of grounds of appeal as supplementary grounds.
 The appeal before us being a second appeal, under section 361 of the Criminal Procedure Code this Court cannot entertain a second appeal:
“(a) On a matter of fact, and severity of sentence is a matter of fact; or (b) against sentence except where a sentence has been enhanced by the High Court unless the subordinate Court had no power under section 7 to pass the sentence.”
 It is evident from the record of the Subordinate Court that the appellant was convicted after the charge and the particulars were clearly explained to him, and that the appellant not only admitted the charge but also admitted the facts. In its judgment, the High Court examined the record and confirmed that the appellant’s plea of guilty was unequivocal. We note that under section 348 of the Criminal Procedure Code, no appeal on plea of guilty
“shall be allowed in the case of an accused who has pleaded guilty and has been convicted on that plea by a subordinate court except as to the extent or legality of the sentence.”
 Having examined the records of the two lower Courts, we are satisfied that plea was properly taken and that the charge sheet was proper. The appellant was charged with trafficking which is defined under section 2 of the Narcotic Drugs and Psychotropic Substance (Control) Act, to include any of the following acts:
“Importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution…”
 In this case, the appellant was alleged to be trafficking through selling narcotic drugs. The police found the appellant in possession of 43 rolls of cannabis sativa and 16 sachets of heroin. The appellant not only admitted the possession of the drugs but also conceded that he was using the sale of the drugs to sustain himself when he stated, “I use the drugs in the beach to get something to assist me. I do not deny the charge but I ask Court to forgive me.” This admission was reiterated further by the appellant in mitigation attached to his petition before the High Court when he stated that “it was due to being jobless and poor with the burden of the family that I was to be hired as a salesman by a drug dealer”
 Under section 4(a), of the Narcotic Drugs and Psychotropic Substance (Control) Act, there is no requirement that the trafficking must be of a specific quantity of drugs or that the person be found with any proceeds of the trafficking. It is enough that the person holds out any narcotic drugs or psychotropic substance for any of the following reasons “importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution”. In our view the charge against the appellant was proper and the appellant having been convicted on his own plea of guilty, it is not open to him to challenge the conviction as he has no further right of appeal in this regard.
 The sentence imposed on the appellant was that provided by the law under section 4(a) of the Narcotic Drugs and Psychotropic Substance (Control) Act No. 4 of 1994. The severity of the sentence is a matter of fact that is not open to this court to go into in this second appeal. Thus the attempt by the appellant to question the legality of the sentence falls flat on its face.
 For this reasons we find no substance in this appeal and do therefore dismiss the appeal in its entirety.
Dated and delivered at Malindi this 13th day of May, 2014.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a
true copy of the original.