https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6767

Chapia v Republic (Criminal Appeal E046 of 2025) [2026] KEHC 6767 (KLR) (Crim) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6767 (KLR) Republic of Kenya In the High Court at Nyandarua Criminal Criminal Appeal E046 of 2025 KW Kiarie, J May 20, 2026 Between Alex Opati Chapia Appellant and Republic Respondent (From the original conviction and sentence in Criminal Case No. E034 of 2025 of the Senior Principal Magistrate’s Court at Engineer by Hon. H. Adika– Senior Principal Magistrate) Judgment 1.Alex Opati Chapia, the appellant herein, was convicted of trafficking narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances(Control) Act, 1994. 2.The particulars of the offence were that on the 3rd day of February 2025, at Magumu location, in South Kinangop within Nyandarua County, he was found trafficking 75 rolls of bhang and approximately 650 grams with a street value of Kshs.4, 000 which was not in medicinal preparation form. 3.The appellant was sentenced to pay a fine of Kshs. 200,000 and, in addition, serve ten years' imprisonment. 4.The appellant raised the following grounds of appeal:a.The learned trial magistrate erred in law and fact by convicting the appellant on a charge of trafficking whose particulars disclosed only possession, thereby rendering the charge fatally defective and incurable under section 382 of the Criminal Procedure Code.b.The learned trial magistrate erred in law and fact by convicting the appellant for the offence of trafficking in narcotic drugs on the basis of evidence that did not establish the essential ingredients of trafficking beyond a reasonable doubt.c.The learned trial magistrate erred in both law and fact in convicting the appellant yet failed to note that the prosecution did not produce inventory form to confirm that the said items was recovered from the appellant house.d.The learned trial magistrate erred in both law and fact in convicting the appellant yet failed to note that the prosecution did not produce weighing certificate to affirm exact weight of the said narcotic drugs.e.The prosecution failed to demonstrate any act of sale, distribution, transportation, or dealing in narcotic drugs by the appellant. The finding by the trial court that the appellant was found in possession of 75 rolls of bhang and 650 grams of plant material was improperly elevated to proof of trafficking, contrary to established legal principles that distinguish possession from trafficking.f.The learned trial magistrate misdirected herself by equating mere possession of narcotic drugs with trafficking, thereby arriving at a conviction unsupported by evidence and contrary to the law.g.The learned trial magistrate failed to properly evaluate and analyse the prosecution evidence, and thereby erred in finding that the case had been proved beyond reasonable doubt.h.The learned trial magistrate erred in law and fact when he failed to note that the prosecution's case rested solely on the testimony of two arresting officers, with no independent or corroborative evidence linking the appellant to the alleged offence of trafficking and that no evidence was adduced to show that the appellant owned, occupied, or had exclusive control of the premises where the narcotics were recovered.i.The learned trial magistrate erred in law and fact by failing to find that the prosecution had not discharged its burden of proof as required in criminal cases, thereby shifting the burden to the appellant.j.The learned trial magistrate failed to consider material inconsistencies and gaps in the prosecution's case, including the failure to apprehend or account for the second individual who allegedly fled the scene, whose evidence would have been crucial in establishing the truth.k.The learned trial magistrate erred in law and fact by relying on evidence whose chain of custody was not established, thereby admitting and relying on exhibits of questionable integrity.l.The learned trial magistrate erred in law and fact when he failed to note that the prosecution failed to produce documentary or photographic evidence to support the recovery and handling of the alleged narcotics, and no proper chain of custody was demonstrated to connect the recovered items to those analysed and produced in court.m.The learned trial magistrate failed to properly consider the appellant's defence, which was plausible and raised a reasonable doubt as to his involvement in the alleged offence.n.The appellant’s explanation that he was merely a visitor in the house was not displaced by the prosecution, and the trial court erred in dismissing the defence without subjecting it to proper judicial scrutiny.o.The learned trial magistrate erred in law and fact by drawing adverse inferences from the appellant’s conduct, namely his alleged resistance to arrest, without considering alternative explanations consistent with innocence.p.The conviction was against the weight of evidence and was unsafe.q.The without prejudice to the foregoing, the learned trial magistrate erred in law and fact by imposing a sentence that was manifestly harsh and excessive in the circumstances, failing to consider the quantity of the substance involved and the applicable mitigating factors. 5.The respondent opposed the appeal, through learned counsel M/s Vena Odero, on the ground of lack of merit. 6.This is a first appellate court. As expected, I have analyzed and evaluated all the evidence before the lower court afresh and drawn my conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32. 7.Although the appellant claimed that the charge was defective, my perusal of the same did not disclose any defect. This ground is therefore baseless. 8.PC Erick Walubengo (PW1) testified that, after being informed about a drug peddler, he and a colleague went to the appellant's house. They found the appellant and another individual there. The appellant claimed to own the house. When they announced the arrest, the appellant became violent. PC Cyrus Kikongo also confirmed this. 9.Alex Opati Chapia, the appellant, stated that he was at a neighbour’s house when police arrived at the door. He claimed he caused a disturbance to prevent the police from searching the house, asserting that it was not his. 10.This defence was hollow, and the learned trial magistrate rightly dismissed it. 11.Trafficking is defined in the Act as:“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 or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof; 12.The evidence on record, therefore, proved the offence. 13.Section 4 of the Narcotic Drugs and Psychotropic Substances(Control) Act, 1994 provides:Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—(a)in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life; or(b)in respect of any substance, other than a narcotic drug or psychotropic substance, which he represents or holds out to be a narcotic drug or psychotropic substance, to a fine of five hundred thousand shillings, and, in addition, to imprisonment for a term not exceeding twenty years. 14.An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364. 15.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 narcotic drugs he was arrested with were estimated to be valued at Kshs. 4,000. The penalty should have been aKshs 1,000,000 or 12,000/= fine, whichever is the greater, and, in addition, imprisonment for life. 16.I therefore conclude that the appeal has no merit, and the same is dismissed. DELIVERED AND SIGNED AT NYANDARUA, THIS 20TH DAY OF MAY 2026KIARIE WAWERU KIARIEJUDGE