[1997] KECA 308 (KLR)
The court found that the prosecution's failure to call the owner of the house and another person who were arrested with the appellants, but later released, created a presumption that their evidence would have been unfavorable to the prosecution. There was no sufficient evidence to establish that the appellants were...
Source-derived case information.
- Citation
- [1997] KECA 308 (KLR)
- Parties
- Appellant: Ahmed Salim; Appellant: Abdulrahman Mohamed; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 38 of 1997
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellants released unless otherwise lawfully held.
- Judges
- AM Akiwumi
- Legal Topics
- Possession of Narcotics, Evidence Evaluation, Failure to Call Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Salim
Appellant
Abdulrahman Mohamed
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved possession of narcotic drugs by the appellants beyond reasonable doubt.
- 2 Whether the failure to call key witnesses was fatal to the prosecution's case.
Ratio Decidendi
The court found that the prosecution's failure to call the owner of the house and another person who were arrested with the appellants, but later released, created a presumption that their evidence would have been unfavorable to the prosecution. There was no sufficient evidence to establish that the appellants were in possession of the narcotic drugs as required by law. Mere presence at the scene was not enough to prove possession. Consequently, the conviction could not be sustained.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellants released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: OMOLO, AKIWUMI & LAKHA)
CRIMINAL APPEAL NO.38 OF 1997
BETWEEN
1. AHMED SALIM
2. ABDULRAHMAN MOHAMED..................................APPELLANTS
AND
REPUBLIC.................................................RESPO NDENT
(Appeal from a conviction, judgment or as the case may be of the High court of Kenya at Mombasa (Mr. Justice Waki) dated 9th May, 1997 in H.C.CR.A NO. 340 & 341 OF 1996 *************************
JUDGEMENT OF THE COURT
This is an appeal against conviction of the appellants of the offence of being in possession of Neurotics Drugs contrary to section 3(1) of the Neurotics and Psychotropic Substance (Control) Act No.4/94 as read with Sub-section 2(a) and 2(b) of the said Act.
The drugs in question were found in the house which the appellants had visited. The owner of the house and another who were also arrested with the appellants but released and never called to testify at the trial. This raises the inevitable presumption that witnesses if called would have given unfavourable evidence against the prosecution. This failure on the part of the prosecution was fatal to conviction. There is no evidence sufficient to raise any presumption of possession against the appellants. We are satisfied that the conviction against the appellant cannot be satisfied. The appeal is accordingly allowed; conviction quashed and sentence set aside. The appellants are released unless otherwise lawfully held.
Dated and delivered at Mombasa this 14th day of July, 1997.
R.S.C. OMOLO
...............
JUDGE OF APPEAL
A.M. AKIWUMI
...............
JUDGE OF APPEAL
A.A. LAKHA
...............
JUDGE OF APPEAL