[2017] KEHC 9364 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT RMBU

CRIMINAL APPEAL 56 OF 2015

ANTHONY MUGENDI NJAGI……..…..........…APPELLANT

VERSUS

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

JUDGMENT

In the subordinate court, the Appellant herein ANTHONY MUGENDI NJAGI was charged with the offence of being in possession of Narcotic Drugs contrary to section 3(l) as read with section (2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994.

The particulars are that on the 3rd day of September, 2012 at Manyatta market, Manyatta sub location in Embu municipality within Embu County was found in possession of 3 rolls of cannabis in contravention of the said Act.

The Appellant also faced a second count on resisting lawful arrest contrary to section 253 (6) of the Penal Code.

The particulars are that; on the 3rd day of September 2012, at Manyatta market in Embu Municipality within Embu County, resisted the lawful apprehension of himself by P.C Ndiwa, A. P.C Wag’ombe and P.C Kaburi who was at the time acting in the execution of their duty.

The summary of the evidence as adduced by PW1 and PW2 was that on the 31/9/2012 at 8 pm, they were on patrol at Manyatta Market when they met the Appellant smoking Bhang. On seeing them, he ran away but they pursued and arrested him. On conducting a search they recovered 3 rolls of Bhang which were on his right side pocket. They took him to Manyatta police station and charged him with the offence herein.

PW3 is the officer who investigated the case. On 3/9/2012 he was with PW1 and PW2 on patrol duties at Manyatta market when they smelt Appellant smoking bhang. On spotting PW1, PW2 and PW3, he ran away but they chased and arrested him. They searched him and recovered 3 rolls of bhang in his pocket trouser. They arrested him and preferred the charges herein.

PW3 prepared the exhibit form which he sent to the government chemist with the 3 rolls of bhang. The report from the government analyst confirmed the substance to be bhang.

On being put on his defence, the Appellant stated that on the material day i.e 3/9/2012 he was attending a birthday party for his friend and in the evening on his way home, he went through a bar wherein a barmaid sat next to him and a quarrel ensured between him and a police officer who slapped him. He was arrested and taken to the police station and only saw the 3 rolls of bhang when he was taken to court.

At the conclusion of the trial, the Appellant was convicted and sentenced to serve 5 years imprisonment and being dissatisfied with the conviction and sentence, he appealed to this court and has listed 5 grounds of Appeal which are that;

1. The learned Magistrate erred in convicting the Appellant on uncorroborated, contradicted and inconsistent evidence of PW1, PW2 and PW3.

2. That the learned Magistrate erred by failing to consider that no independent witness was called to testify.

3. That the learned Magistrate erred by failing to observe that no inventory records were produced to support recovery.

4. That learned Magistrate failed to consider the Appellant’s defence.

In his submissions, the Appellant submitted that the Magistrate erred in relying on the evidence of PW1, PW2 and PW3 which lacked merits. He averred that the said witnesses did not book the recovery of the 3 rolls of bhang in the O.B after they allegedly recovered it from him which means that he was not arrested with the said rolls of bhang. He stated that the police officers did not recover any bhang from him yet they testified that they found him smoking bhang.

The Appellant further submitted that the evidence of PW1 and PW2 was contradictory in that PW1 stated that they arrested him at the back street of shops and bars while PW2 stated that they arrested him at the bus stage.

He averred that the evidence of PW1, PW2 and PW3 is not clear on who among them recovered the 3 rolls of bhang from the Appellant and that there was no inventory made of the recovered rolls of bhang.

It was his further submissions that he did not resist arrest and the 2nd count of resisting arrest was added much later after the learned Magistrate asked the police to investigate why the Appellant was swollen on the face.

The Appeal is opposed. The state submitted that the evidence adduced by the prosecution witnesses is clear and consistent. The court was told that the Appellant was positively identified by PW1, PW2 and PW3 when he was smoking bhang and was arrested. That he did resist arrest and this evidence was given by PW1, PW2 and PW3.

The court was told that there was no need of an inventory in that, the rolls were recovered from the Appellant and the incident was recorded in the occurrence book and the extract from the O.B was produced as an exhibit.

It was submitted that the 3 rolls of bhang that the Appellant was arrested in possession of, were taken to the government chemist and they were tested and found to be cannabis. The state further submitted that the defence of the Appellant was taken into account by the learned Magistrate.

The court has considered the evidence on record and the submissions by the respective parties.

The Appellant contended that the Magistrate erred in convicting him on uncorroborated, contradictory and inconsistent evidence of PW1, PW2 and PW3. This court has perused the evidence on record and according to the three prosecution witnesses, they were on patrol at Manyatta market on the 3/9/2012 when they met the Appellant smoking bhang but on seeing them, he ran away. They pursued him and arrested him with 3 rolls of bhang which they recovered from his pocket trouser. They arrested him and took him to Manyatta police station

The evidence of PW1, PW2 and PW3 is also clear that he was resisting arrest but they subdued him. In my view, the evidence on record is sufficient and the prosecution did not have to call other witnesses to prove the case against the Appellant.

On failure by the prosecution witnesses to produce an inventory, it was the Respondent’s submissions that an extract of the O.B was produced in the lower court which shows that the 3 rolls of bhang recovered by pw1, pw2 and pw3 was entered in the said O.B. Though the record does not support the fact that the O.B extract was produced, the Appellant did not deny that fact. In the circumstances, it was not necessary for the prosecution to produce the inventory though it is good practice that any recovery is noted down in an inventory. But for purposes of evidence, it is sufficient if the O.B extract was produced capturing the 3 rolls of bhang from the Appellant.

On the inconsistencies of the evidence adduced by PW1, PW2 and PW3, I concur with the Appellant that there were some contradictions but in my view, the same were not so material as to affect the veracity of the evidence adduced. The main ingredient of the offence is the possession of Narcotic drugs and there is sufficient evidence that the Appellant was found in possession.

The Appellant contends that his defence was not considered. I have perused the record and it shows that the Appellant’s defence was considered but the learned Magistrate found it wanting, inconvicing and a mere denial which did not challenge the prosecution’s case.

This court fully concurs with the learned Magistrate’s findings on the Appellant’s defence.

In the premises, I find that the prosecution did prove its case against the Appellant beyond any reasonable doubt but under section 354 of the CPC, I find that the sentence in both counts was excessive considering the circumstances of the case. I hereby reduce the same to the period already served and do order that the Appellant be released forthwith unless otherwise lawfully held.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

…………….....

L. NJUGUNA

JUDGE

In the Presence of

…………………….. for the Appellant

...…………………....for the Respondent