Man loses bid to quash 10-year bhang sentence in Nyandarua

A Nyandarua court has dismissed an appeal by a man sentenced to 10 years' imprisonment for trafficking bhang. 

Alex Opati Chapia was found with 75 rolls of bhang weighing approximately 650 grammes and valued at Sh4,000 at Magumu in South Kinangop, Nyandarua county, on February 3, last year. 

He was sentenced by the magistrate’s court at Engineer to serve 10 years behind bars with a fine of Sh200,000.

Chapia challenged both the conviction and sentence on multiple grounds. He argued that the charge was defective because the particulars disclosed only possession, not trafficking. 

He also contended that the prosecution failed to produce an inventory form, a weighing certificate, or any documentary or photographic evidence to support the recovery and handling of the narcotics. 

The appellant claimed he was just a visitor in the house where the drugs were found and that he caused a disturbance only to stop police from searching a property that was not his. He further argued that the trial court improperly elevated mere possession into trafficking, with no evidence of sale, distribution or transportation.

Prosecution counsel Vena Odero opposed the appeal, saying it lacked merit.

The two arresting officers, PC Erick Walubengo and PC Cyrus Kikongo, testified that Chapia claimed to own the house and became violent when they announced his arrest.

In his judgment delivered in Nyandarua on Wednesday, Justice Kiarie Waweru dismissed the appeal. The judge found no defect in the charge and ruled that the evidence on record proved the offence beyond reasonable doubt.

Citing the definition of trafficking under the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, the judge stated: “Trafficking means the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance.” 

He added: “The evidence on record, therefore, proved the offence.”

The court rejected the appellant’s defence that he was a visitor, describing it as hollow. 

On sentencing, Justice Kiarie noted that under section 4(a) of the Act, the penalty for trafficking should have been a fine of Sh1 million or three times the market value of the drugs–whichever is greater–and, in addition, imprisonment for life.

However, the judge observed that an appellate court will not interfere with a trial court’s sentence unless the trial court acted on a wrong principle or overlooked a material factor, or the sentence is manifestly excessive.

“The appellant has not provided sufficient reasons to demonstrate that the learned trial magistrate acted upon some incorrect principle or overlooked some material factor,” the judge ruled.

The court also dismissed complaints about the chain of custody, lack of independent witnesses and failure to apprehend a second individual who allegedly fled the scene. 

“I therefore conclude that the appeal has no merit and the same is dismissed,” Justice Kiarie ruled.