https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11485

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CRIMINAL APPEAL NO. E013 OF 2026** **AHMED ALI.…………..…………………………………...APPELLANT** **VERSUS** **REPUBLIC…………………………………..…..…………RESPONDENT** *(Being an appeal from original conviction and Sentence by Hon. F.M.Mulama, Resident Magistrate, in Lamu PM`s Court Criminal Case No. E029 of 2025 delivered on 7/8/2025)* **JUDGMENT** 1. The Appellant was convicted of the offence of possession of narcotic drugs contrary to section 3(1) as read with section 3(2) (B) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The particulars of the offence were that on the 1st March 2025 at around 1500 hours at Shella location in Lamu central sub county within Lamu county he was found in possession of narcotic drugs namely cocaine to wit 20 grams with a street value of Ksh.50,000/= in contravention of the said Act. 2. The appellant was sentenced to serve imprisonment for a period of 5 years. He was aggrieved by the conviction and the sentence and filled the instant appeal. 3. The grounds of appeal are that: 4. That the trial magistrate erred in law and fact in finding that the prosecution had proved the charge beyond reasonable doubt. 5. That the trial magistrate erred in law and fact in dismissing the appellant`s defence on ground that he had not called witnesses, thereby shifting the burden of proof from the prosecution to the appellant. 6. That the trial magistrate erred in law and fact by failing to properly consider the chain of custody of the alleged narcotic exhibits from the time of recovery to the time of analysis. 7. That the trial magistrate erred in law and fact by failing to sufficiently establish and verify the quantity of the alleged narcotic drug stated in the charge. 8. That the trial magistrate erred in law and fact by relying on insufficient and uncorroborated prosecution evidence. 9. The conviction was against the weight of evidence on record. **Case for prosecution** 1. The case for the prosecution is that the Appellant had been arrested by the police for an unrelated offence. PC Macharia PW1, PC Kirui PW2 and PC Kiplangat PW3 all of Lamu police station set off from the police station to conduct a search at the house of the appellant over the complaint that had made him to be arrested. The appellant led them to his house at Shella village. They found the appellant`s family members in the house. The appellant showed the policemen his room. The policemen searched the room. PC Kirui PW2 found a bag next to the bed. He opened it and found 3 test tubes that contained white substance. He also found the driving licence and passport of the appellant in the bag. They took photographs at the scene. The appellant was taken back to the police station. He was charged with the aforementioned offence. 2. PC Kiplangat PW3 prepared an inventory of the recovered items. He prepared an exhibit memo and took the 3 test tubes to the government chemist laboratory Mombasa where the same were examined. He later received a report that the whitish powdery substance was cocaine. 3. During the hearing in court the investigating officer, PC Kiplangat, produced the following as exhibits: the photographs of the scene, the 3 test tubes, the cigarette packet, the Driving Licence, the passport, black wallet, inventory, certificate of photographic evidence, exhibit memo and the government analyst report, P.Exh.1 - 10 respectively. **Defence case** 1. The appellant when placed to his defence stated that he is a resident of Shella and he is a fisherman. He denied that he was found with the whitish substance. He admitted that the Driving Licence and the passport are his. He said that the photos produced in court were taken in his room but the drugs were planted by PC kirui. That his mother and sister were in the house during the search but they were terrified to come to his room because of the presence of policemen. 2. The appeal was canvassed by way of written submissions. **Submissions** 1. The appellant submitted that it was the duty of the prosecution to prove that he had knowledge of the presence of the drugs in the room and that he exercised physical control over them. He submitted that the conviction rested entirely on assumption rather than proof of knowledge. 2. It was submitted that the trial court dismissed the appellant`s defence because he did not call witnesses. That this was the wrong approach as the burden of proof was on the prosecution and the appellant was not required to prove his innocence or call witnesses. 3. The appellant submitted that he was convicted of the offence because the drugs were recovered in his room. However, that the prosecution did not lead evidence to show that he had exclusive control over the room. That no evidence was led that other persons had no access to the room, whether the room was shared or whether the officers found it locked. That without such evidence it was unsafe to conclude that the drugs found in the room belonged to the appellant. That mere presence of his personal documents in the room did not prove all items found there belonged to him. 4. It was submitted that the trial court did not properly evaluate the evidence to exclude the defence evidence that the drugs were planted by PW2. That the court shifted the burden of proof to the appellant. 5. It was submitted that the judgment of the trial court does not show how the quantity of drugs was established as there was no evidence that they were weighed and whether the weight was confirmed during analysis. That the chain of custody was not established. 6. For the above reasons, the appellant urged the court to uphold the appeal. 7. The Respondent conceded to the appeal on the ground that the government analyst did not testify in the case. That the government analyst`s report was produced by the investigating officer PW3 who did not lay basis for its production under section 77 of the Evidence Act. That failure to call the maker of the report was a miscarriage of justice as the appellant was not given an opportunity to test the accuracy of the expert`s opinion through cross-examination. That the trial court did not explain to the appellant his right to seek cross-examination of the maker of the document. That in addition the court was not told the methodology used to ascertain that the powder was cocaine. Reliance in this respect was made in the case of [**Soki v Republic [2004] KECA 134 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/134/eng%402004-03-26)**.** **Analysis and determination** 1. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of **Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR** where the Court of Appeal held that: “**On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”** 1. The Respondent conceded to the appeal on the ground that the report of the government analyst was produced in court by the investigating officer PW3 without the court explaining to the appellant of his right to have the document being produced by its maker. 2. In the case of [**Soki v Republic [2004] KECA 134 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/134/eng%402004-03-26), the Court of Appeal held the following on the production of an expert`s report by a police officer: **Before we allow this appeal, as we must do, we need to comment on the manner PW3 (Exh 1) was produced and the way it was dealt with by the trial court and the superior court. Section 77(1) allows any document purporting to be a report under hand of a government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis to be used in evidence. The same could be produced by a police officer as was done in this case provided the accused does not object. It is however necessary that in a case such as this where an accused person is not represented by a counsel, that the accused be made aware of the consequences of the P3 or such other documents being produced by the police in the absence of the maker of such a document. The Court should explain to the accused his right to insist on seeking to cross-examine the maker if he so wishes. In this case, the appellant, should have been made aware that he could seek to cross examine the maker of P3 if he so wished. That was not done but we make haste to add that in our view, nothing turns on that omission as in any case the ingredients of the offence of robbery were satisfied even if injuries were not proved.** 1. In that case the court was categorical that a police officer can only produce an expert`s report in court where there is no objection from the accused person. More so that in cases where the accused is unrepresented the court is obligated to inform the accused person of his to right to have the maker produce the document himself. In the present case the investigating officer proceeded to produce the government analyst’s report in court without the court asking the appellant whether he had any objection to the officer producing the report. He was not informed of his right to cross-examine the maker of the document. I find that there was a miscarriage of justice for the expert`s report to be produced in court by the investigating officer without the accused giving his consent and being informed of his right to cross-examine the maker of the document. The appellant was prejudiced by the short-cut taken by the trial court. The end result is that there was no evidence that what the appellant was alleged to have been found with was cocaine. Without such evidence the charge could not stand. The respondent rightly conceded to the appeal. 2. The upshot is that the prosecution did not prove that the Appellant was found in possession of narcotic drugs. Consequently, the conviction is quashed and sentence set aside. I order the Appellant be set at liberty forthwith unless he is otherwise being lawfully held. **Delivered, dated and signed at GARSEN this 24th day of July 2026** **J. N. NJAGI** **JUDGE** In the presence of: **Mr. Oluoch for Respondent** **Appellant – Present in person at G.K. Prison Hindi** Court Assistant - Rahma