[2017] KEHC 9709 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVIISON

CRIMINAL APPEAL NO. 35 OF 2017

ANNIE BUTOYI CIZA………………………………………APPELLANT

VERSUS

REPUBLIC…………………………………...……………RESPONDENT

(Being an appeal from the original conviction and sentence in the in the Senior Principal Magistrate’s Court at JKIA Cr. Case No.50 of 2016( formerly Kibera Criminal Case No. 3820 of 2015)delivered by Hon. L. O. Onyina, SRM on 8th November, 2016).

JUDGEMENT

Background

The Appellant, Annie Butoyi Ciza, was charged with the offence of trafficking a narcotic drug contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The particulars of the offence were that on the 28th day of August, 2015 at Jomo Kenyatta International Airport within Nairobi County, jointly with others not before court, trafficked by conveying narcotic drug namely Heroin weighing 4820 grams with a market value of Ksh 14, 460, 000/- concealed in a false bottom of her travelling bag in contravention of the provisions of the said Act.

The Appellant was found guilty after which she was convicted and sentenced to pay a fine of Ksh 14 million in default serve one-year imprisonment and in addition serve another term of imprisonment for fifteen (15) years. Dissatisfied by the trial court’s decision the Appellant filed this appeal. The grounds of appeal as contained in a Petition of Appeal filed by the Appellant’s counsel, Kang’ahi & Associates on 31st March, 2017 are that there was insufficient evidence to prove the charge against the Appellant, that the Prosecution did not prove the case beyond reasonable doubt, that the magistrate erred in fact and law in convicting the Appellant when the weight of the evidence did not support a conviction, that the magistrate erred in fact and law in convicting the Appellant when the mandatory provisions of the law were never followed, that the magistrate erred in convicting the Appellant in the face of obvious and material contradictions, inconsistencies and irregularities, that the magistrate erred in convicting the Appellant while relying on his own conjectures and that the sentence was manifestly excessive considering all the circumstances.

Submissions

Both the Applicant and the Respondent filed their respective submissions. Learned Counsel for the Appellant, Mr. Kang’ ahi filed the submissions on the 12th of July, 2017. Mr. Kangahi submitted that the case was not proved beyond a reasonable doubt as the purity of the heroine in question was never tested or ascertained. He added that the position of the magistrate was not shared with the law as Section 5(2) of the Narcotic Drugs and Psychotropic Substances Act in Part III makes a mandatory requirement that the analysis of seized substances must include the test of purity.

Counsel submitted that there were obvious and material contradictions, inconsistencies and irregularities coupled with the fact that the evidence did not support a conviction. He cited the following grounds to support this submission. Firstly, that the appearance and observation of the blue polythene bag was questionable. He submitted PW1 noted that the blue polythene bag was not recorded in the inventory while PW3 who conducted the search on the Appellant did not remember seeing a blue polythene bag. The investigating officer, PW9, on the other hand made no mention of the blue polythene bag. Secondly, that it was not ascertained who pierced the ‘false bottom’ of the suitcase to discover the drugs. PWI testified that PW2 and PW3 are said to have pierced the bag while PW2 contended that it was PW4 who pierced the bag. Thirdly, that there was a contradiction as to who prepared the inventory and witnessed the same. Counsel submitted that PW1 contended that he signed the inventory prepared by PW4 as he was a witness but PW3 claimed that the inventory was prepared by CPL Teddy and CPL Bernard in her presence which would suggest a second copy of an inventory. Fourthly, that the chain of custody of the items allegedly recovered from the Appellant was questionable. It was submitted that there was no proof on how these bags were secured from either PW1, 2, 3 or 4. In addition, Corporal Violet Khalayi who was tasked with handling the evidence did not testify yet PW4 claimed to have handed the evidence to her as well as a handwritten statement. Further, CPL Teddy who PW9 testified was given the evidence by PW4 did not also testify. This, according to the counsel, meant that the chain of custody of the exhibits could not be ascertained.

Mr. Kangahi concluded by submitting that the grave inconsistencies exposed the prosecution case that the best option was to uphold the appeal. He urged the court to quash the conviction, set aside the sentence and free the Appellant.

In opposing the appeal, learned State Counsel, M/s Nyauncho for the State submitted that the Prosecution was able to prove that the Appellant trafficked narcotic drugs valued at Ksh 14,460,000/- when she was apprehended on her way to Athens while transiting through Paris on a Kenya Airways flight. Learned counsel submitted that the brown substance that was found hidden in the bag of the Appellant was weighed and analysed by PW8, the government analyst who made a report on the same. She added that testing the purity of the said drugs was not a mandatory procedure and that the failure to do so did not reduce the weight of the evidence adduced.

M/s Nyauncho added that PW1 did not testify as to the presence of a blue polythene bag as the search and piercing was done by the two female officers, PW2 and PW3. PW10 however confirmed that the drugs were hidden in a blue polythene bag after they opened it on the 31st of August, 2015.

Counsel also submitted that the inventory was made by PW4 and signed against by PW1 a fact that PW2 corroborated. She submitted that the chain of custody was explained by PW10 from the moment the bag was weighed by PW9 and taken to the government analyst by PW5 then back to PW4 and eventually to PW9, the head of the anti- narcotics unit at Jomo Kenyatta International Airport. She concluded by urging the court to dismiss the appeal.

Evidence

The Prosecution called a total of ten witnesses. PW1, Corporal Barnabas Kemei of the Anti- Narcotics Unit at the Jomo Kenyatta International Airport(JKIA) while on patrol with Corporal Teddy and Corporal Munialo (PW4) on the 28th of August, 2015, noticed a suspicious looking lady who was in the company of three (3) children. The lady, Annie Butoyi Ciza, the Appellant herein, was briefly questioned by PW1 who discovered that she was from Arusha, Tanzania and was on her way to Paris and then Athens. She had a Dutch Passport number NSCBBD9B8. She was also in the possession of three other passports belonging to her children. PW1 also recovered a bus ticket from the Arusha- Nairobi trip by ‘Riverside Tours’ which was number 261350. He proceeded with her to the anti-narcotics office which was at International Arrivals area. Here, PW2 and PW3 searched her three checked-in bags and found one, the brown one, to have a false bottom. Underneath the false bottom was a blue polythene bag containing a brown substance which he suspected was a narcotic drug. Thereafter, he prepared an inventory with PW4. A spot test was also done and the brown substance was ascertained to be heroin that weighed 4820 grams.

In cross examination PW1 stated that he did not record in his statement that he suspected the substance found in the bag to be narcotic drug, namely heroine. He also stated that he recorded his statement on 31st of August, 2015 against his testimony in chief that it was recorded on the 28th of August, 2015.

PW2, PC Irene Karuga testified that on the 28th of August, 2015 at around 11:40 p.m. she was summoned by PW4 to search a female passenger. After searching the three bags, she noticed that one of them, the brown one, was quite heavy despite it having been emptied of the clothes that were inside. She noticed another blue polythene bag and notified her colleague who pierced the bag and found a brown substance inside. In cross examination, she stated that she did not record the presence of the blue bag in her statement and that she did not see the tags on the bags showing they belonged to the Appellant.

PW3, PC Regina Ndeleva Mbingo a CID officer at the JKIA was, at around 11:30 p.m. also summoned by PW4 to perform a search on the Appellant. She did this on the presence of PW2. She remembers the brown bag suspected to have narcotics had a tag written “Ciza” and it belonged to the Appellant. PW3 added that the inventory was prepared by Corporal Kemei and Teddy, whom she saw write it. In cross examination, she stated that she did not see any blue bag or record that she saw a yellow/brown substance in the brown bag.

PW4, Corporal Reuben Munialo was in the company of PW1 and Corporal Teddy when they confronted the Appellant at the airport. He testified that they escorted her to the Kenya Airways baggage claim area where she retrieved the baggage she had checked in. They then proceeded to the anti- narcotics office where he called PW2 and PW3 to search her. After they discovered the false bottom, he pierced it and found a blue paper bag where some grains came out. He issued a seizure notice that was signed by the Appellant and Corporal Teddy. Afterwards, he made the inventory. On the following day, the 29th of August, 2015, he handed over all the items he had recovered to Corporal Violet Khalayi. PW4 added that a black linen cloth was used to wrap the suspected drugs. In cross examination, he added that he did not record he saw the yellowish colour in the retrieved bag. PW4 also stated that he did not make any handing over notes when he passed the items to Corporal Violet Khalayi and that he was not present during the sampling, spot test or the weighing the drug.

PW5, Police Constable Dele Zhosi Heshima of anti- narcotics police unit testified that on the 31st of August, 2015 he was tasked with sampling, weighing and photographing the substances recovered from the Appellant. He then escorted the samples to the government chemist on the same day and collected the report on the 4th of September, 2015.

PW6, PC Bernard Kiplagat Serem of anti- narcotics office at JKIA took photographs of the recovered drug and other items on behalf of Corporal Lucy on the 31st of August, 2015. He also asserted that sampling was not done on the 28th of August.

PW7, Corporal George Mutiso Kisingu also of anti- narcotics unit at JKIA made a valuation of the seized drugs. The drugs were valued at Ksh 14,460,000/. He said that one gram of the drug was valued at Ksh 3,000. His valuation report was dated 4th of September, 2015.

PW8, Mariah Njeri Chege sampled some of the drug at JKIA in the presence of the Appellant, Lucy Warware, Martin Ndegwa, Bernard Serem and Hezekiah Ndele on 31st August, 2015. On the 1st of September, her boss, Nur Habil Omondi, received the exhibits and she made her report on the 4th of September, 2015. In cross examination, she stated that the sampling report did not indicate that the substance sampled was heroine. She also asserted that no preliminary tests were conducted on the 31st of August, 2015.

PW9, Inspector Martin Ndegwa Irungu of the anti- narcotics unit at the Jomo Kenyatta International Airport drew up the weighing certificate which he signed as a witness. PW9 added in cross examination that there was no preliminary test done or preliminary report made. He added that he also did not mention any blue bag in his statement.

PW10, PC Lucy Warware of the anti- narcotics unit was the investigating officer in the matter. She summed up the testimonies of all the prosecution witnesses. She noted that the false bottom of the Appellant’s bag had a black cloth and beneath it a red coloured hard cover and below that a blue polythene bag. She asserted that the tags were removed from the bags for safe custody. She testified that that the weighing was done by a weighing officer, Inspector Ndegwa. She added that the certificate of sampling did not indicate that the sampled substance was heroin.

After the testimony of these 10 prosecution witnesses, the Appellant was put on her defence. She chose to give a sworn testimony and not call any witnesses. She stated that she was working with a travel and tourism company in England. She went on a roundtrip with her children which began in Arusha, Tanzania by bus then to Jomo Kenyatta International Airport and eventually Athens, Greece before returning to England. She remembers two plainly- clothed police officers confronted her at the lounge of JKIA who asked her to follow them to their office. They returned with her bags after an hour. The bags had no tags but she recognized them as hers. Without any form of explanation, two police women entered the room and started to search her bags. She had, among other things in the bag dried fish and some African foods. Nothing was recovered from the bags.

The Appellant went on to state that after a while, one of the male police officers, PW1, asked the lady police officers, ‘Umepata chochote?’( which means if they had found chocolate) which they replied, ‘Hamna Kitu!’ ( there is nothing). He then nudged them saying, ‘Angalia chini! Angalia chini! Angalia chini!’ He added, ‘Yes! It is there chini!’ ( check at the bottom, it is there at the bottom). She queried them on what was happening but no one responded. After this they closed the bag and they all left. Corporal Teddy then walked in and asked if she knew Kiswahili and she responded in the affirmative as she was from Tanzania. He was visibly perturbed by this discovery.

On the following morning, different police men came and collected all her money and electronics. She requested to call her family in Tanzania who were able to get hold of a lawyer, Mr. Kangahi as well as the British and Dutch embassies. She recalls signing the inventory though it did not list the blue polythene bag. Later, she was taken to Kibera Courts for placement of custody of her children. After returning to the airport, she was accosted by seven police officers who demanded that she takes a photograph alongside her bags. She was not told about the drugs before the 29th of August, 2015. She was also not shown the drugs allegedly recovered from her bag. She recalls seeing a lady testing some substances. She did not she see anyone piercing her bag nor the blue polythene bag.

Determination

It is now the duty of this court, as a first appellate court, to re-evaluate the evidence on record and come up with its own independent conclusions. In doing so however, the court must bear in mind that it did see or hear the witnesses and give due regard for that. See Pandya vs. Republic [1957] EA, 336.

The first issue raised was that the trial court used its own conjectures and did not apply the mandatory provisions of law. This is in specific reference to the fact that the purity of the heroin in question was not ascertained. Learned Counsel, Mr. Kang’ahi submitted that this was in contravention of the mandatory provision in the subsidiary legislation, that is the Narcotic Drugs and Psychotropic Substances (Control) (Seizure, Analysis and Disposal) Regulations 2006 Part III – Subsequent General Procedures. Regulation 5 thereunder reads;

“5. Analysis of seized substances

(2) The designated analyst shall, as soon as practicable thereafter, carry out an analysis of the seized substance to determine its-

(a) identity; (b) quantity or mass; and (c) purity.”

The issue in question is the interpretation of the word ‘shall’. Was it a discretionary word or does it connote a mandatory provision of the law? The purpose of the subsidiary legislation is to provide the necessary framework for execution of the provisions in the main Statute. That notwithstanding, the purpose of ascertaining the three mentioned qualitative and quantitative tests are so as to ensure that the accused is convicted and sentenced pursuant to ascertainment of the drugs he is found in possession of. This is done by an expert, and in this case the same was done by a government analyst. The Analyst Report clearly categorized the drug as heroin which was a narcotic drug under the Narcotic Drugs and Psychotropic Substances Control Act, 1994. In my view then, the failure to test the purity of the drug did not lessen the fact that the substance was confirmed as a narcotic drug, heroine. With this proof, the value of the drug remained as weighed. In that respect, I find that the analyst did not err by not indicating the purity of the drug. This ground of appeal therefore fails.

The second issue raised is the omission of the blue bag in the statements of the prosecution witnesses save for PW10 and its exclusion from the inventory. The importance of the blue polythene bag was imperative as it would give a clearer picture as to the differing testimonies by all the witnesses regarding the exact bag in which the drugs were found, who pierced the bag, who discovered the drugs in the first instance and who recorded the inventory. All the officers involved with the Appellant on the 28th of August, 2015 do not give any cogent reason as to why they all failed to mention the blue polythene bag in their statements yet they were passionate about it in court. More contradiction was vivid from the evidence of PW3 who testified of not having seen the blue bag. She neither mentioned it in her statement. This was a material contradiction which clearly weakened the prosecution case by casting a doubt on where the drugs were recovered.

More doubts abound upon a perusal of the document titled “DIRECTORATE OF CRIMINAL INVESTIGATIONS CERTIFICATE AS TO THE PHOTOGRAPHIC PRINT’ which provided a description of the photographs taken on the 31st of August, 2015 by PW6 under the instructions of PW10. Photograph No. 8 was a close up view of first layer of unwrapped exhibit marked ABC-1, Photograph No. 9 is a close up view of second layer of unwrapped exhibit marked ABC-2 and Photograph No. 10 is a close up view of the third layer of unwrapped exhibit marked ABC-3. After examining the coloured photographs, photographs 8, 9 and 10 show a brown coloured polythene cover, a brown and green polythene cover and a blue polythene cover respectively. According to the certificate, the blue polythene bag was the last and third layer covering the drugs. There is no explanation as to how anyone could have seen it as it would have been concealed by the first two layers. In addition, no one noted the other two layers concealing the drugs. This raises doubt as to exactly which officers were present when the drugs were discovered and the recovery was done, if at all. Furthermore, it begs how the clothes which were in the bag were not included in the inventory. And I pose the question, was this a masterpiece of selective evidence that was aimed at pinning down the Appellant? No answers were availed for this doubtful activity.

The third issue would be the lack of crucial witnesses testifying. The Appellant alleges that Corporal Teddy was in the company of PW1 when she was first confronted. Multiple witnesses also alleged that Corporal Teddy was assisting in recording the inventory. The Appellant also alleged that Corporal Teddy also confronted her later after she overheard them speaking in Kiswahili and he was shocked by the fact that she overheard them talking. Corporal Teddy was crucial in explaining the matters that are contentious especially the discovery of the drugs which the Appellant vehemently denied. He would have also shed light on the discrepancy brought forward on how the bags were retrieved from the Kenya Airways baggage claim area. The Appellant alleged that the bags were brought to her by the PW1, 4 and Corporal Teddy without tags while PW1 and 4 claimed that she collected her own bags which had tags. This contradictory piece of testimony could have been cleared by Corporal Teddy. He was, however, not called to testify, greatly weakening the prosecution case.

Another important entity in this case is Corporal Violet Khalayi, who PW4 said he handed over all the evidence collected by him. Having been in possession of the drugs over the weekend until when PW8 was given the drugs for testing and sampling, her testimony was crucial in ensuring that that the chain of custody was sound. But this was not the case because she neither recorded a statement nor testified in court.

Courts of concurrent jurisdiction and higher have delivered themselves that the failure to call crucial witnesses heavily weakens the prosecution case. In fact, when it is clear that there was deliberate failure to call the witness(es), an inference may be drawn that had the witness been called he would have adduced adverse evidence for the prosecution. See Bukenya v Uganda (1972) EA, 549. I draw a similar inference in the instant case particularly in view of the discrepancies in the evidence of the witnesses pointed above.

The fourth issue that the Appellant raised was that the prosecution witnesses did not show or prove how the confiscated items were securely stored. The Narcotics Drugs and Psychotropic Substances (Control) (Seizure, Analysis and Disposal) Regulations Part III – Subsequent General Procedures provides at Regulation 7 provides as under;

7. Storage, Security and Transportation of seized substances

“The seizure shall ensure that-

(a) all seized substances in his custody are kept in secure storage and released from secure storage only for the purposes of the Act and these Regulations…”

The Narcotic Drugs and Psychotropic Substances (Control) Act provides for guidelines on the storage of seized property. Section 75 states;

“All articles and things, including any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance seized by any person under this Act shall, as soon as possible, be delivered to the Commissioner of Police with a statement of the particulars relating to the seizure and the Commissioner of Police shall arrange for the articles and things to be kept safely until they are dealt with in accordance with any other provision of this Act, and shall ensure that all reasonable steps are taken to preserve the articles and things while they are so kept.”

All prosecution witnesses failed to mention the manner in which the confiscated items were handled and dealt with from the moment they were alleged to have been discovered in the bag of the Appellant. PW4 claimed to have handed over everything to Corporal Violet Khalayi the following day but no one recorded or recalled ever retrieving the evidence from her. No one also noted where they may have found the items when they handled the matter on the 31st of August, 2015. Clearly, there lacked a concise explanation as to where the drugs were stored throughout the weekend and after their initial confiscation. The chain of custody of the drug is so crucial to a case because it confirms where they were recovered and that they did not change hands as to cast doubts that they were recovered from the accused. In the present case, the chain of custody was not full proof, ultimately casting doubt as to the culpability of the Appellant.

I shall now, as a sum, up determine whether the entire evidence, collated, proved the case beyond a reasonable doubt. The Appellant was apprehended by PW1 who was in the company of PW4 and Corporal Teddy. After retrieval of her checked in luggage, it was PW2 and PW3 who conducted the search and discovered the drugs while in the presence of the afore stated three officers. This was denied by the Appellant. Thereafter, when the false bottom was discovered and after PW4 pierced it, he saw a brown substance come from the bag. The brown substance was sampled by PW8 and found to be heroin; it weighed 4820 grams with an estimated worth of Ksh 14,460,000/-. The drug was ascertained when a sample was taken by PW8, the Government Analyst. Despite the conflicting testimony as to who recorded the inventory, it clearly shows that it was prepared by PW4 when PW1, PW4 and Corporal Teddy accosted the Appellant at Gate 20B. It was made in the presence of the Appellant, PW3, PW1 and PW2.

In his own testimony, PW4 asserted that he is the one who pierced the bag and brown grains came out. Despite this admission, he failed to record the same in the inventory. The failure to note the most important fact, that there was a suspected narcotic drug within the false bottom of the bag raised more questions than answers. This was because it is on the basis of the recovery of the substance that was was suspected to a narcotic drug that the Appellant was detained and the substance subjected to analysis. The question that summarizes this is, if indeed there were drugs in the bag, why was it not recorded in the inventory of discovered items when it was in fact what was being looked for? This question remains unanswered and it renders the basis on which the Appellant was charged superfluous.

In view of my analysis of the evidences, I have no reason not to conclude that the prosecution did not prove their case beyond a reasonable doubt. There was entirely no sufficient evidence on which the conviction was founded. I allow the appeal, quash the conviction, set aside the sentence and order that the Appellant be forthwith set free unless otherwise lawfully held. It is so ordered.

Dated and delivered at Nairobi this 9th November, 2017.

G.W.NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr. Kangahi .for the Applicant.

2. Miss Nyauncho for the Respondent.