https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8889

Musa v Republic (Criminal Appeal E035 of 2025) [2026] KEHC 8889 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8889 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E035 of 2025 JN Njagi, J June 19, 2026 Between Bavon Omondi Musa Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. Grace Mutemi, Resident Magistrate, in Malindi Chief Magistrate`s Court Criminal case No.E115 of 2024 delivered on 17/7/2025) Judgment 1.The Appellant herein was convicted of the offence of trafficking in narcotic drugs contrary to section 4(a) (ii) of the Narcotic Drugs and Psychotropic Substance (Control) (Amendment) Act No. 2022. The particulars of the offence were that on the 10th February 2024 at around 2150 hours at Masumbuko area Kilifi South sub county County within Kilifi county jointly with others not before court trafficked in narcotic drug namely cannabis to wit 50 kilograms with a market value of Kshs.1,500,000/= by storing, in contravention of the said Act. 2.The Appellant was sentenced to pay a fine of Ksh.500,000/= in default to serve 10 years imprisonment. He was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are that:1.The learned trial magistrate erred in both law and facts when she shifted the burden of proof from prosecution to the Appellant.2.The learned trial magistrate erred in law in failing to find that the evidence adduced by prosecution was full of massive contradictions.3.The learned trial magistrate erred in law in convicting the appellant on evidence that was poorly investigated.4.The learned trial magistrate erred in both law and fact by sentencing the Appellant to 10 years imprisonment without considering that the sentence was harsh and excessive.5.The learned trial magistrate erred in both law and fact by convicting without considering his reasonable defence. 3.The prosecution called 8 witnesses in the case while the Appellant testified in the case and did not call any witness. Case for prosecution 4.The case for the prosecution was that police officers from the NACADA department and Anti-Narcotics Unit from Nairobi Headquarter PW1, PW2 and PW3 were at Mtwapa area of Kilifi county when they received intelligent information of a certain man at Mtwapa who was dealing in drugs. They went to his house at Masumbuko area of Mtwapa. They knocked at the gate but there was no response. They jumped over the wall and found the Appellant and another person inside the house. They searched the house and found some few rolls, a spoon, a rolling stick and money in different denominations totaling to Ksh.3,175/=. They did further search outside the house and found a dog kennel. There was a dog inside the kennel. They took it out and searched inside. They saw a board properly cut inside the kennel. There was a hole on the side. They peeped inside the hole and saw some sacks. They removed from therein two green sacks and a khaki sack. They found them to contain big rolls of green substance material that they suspected to be cannabis sativa. They counted the big rolls to 435. They took photographs. PC Mutisya PW2 prepared a search certificate which was signed by the Appellant and the police officers present. PC Kirimi Nyaga PW3 prepared an inventory which the two suspects signed. The suspects were taken to Mtwapa police station together with the exhibits. 5.On the following day the 11/2/2024, PC Ndolo PW7 of Malindi DCI was informed of the arrest. He travelled to Mtwapa police station and he was handed over the suspects, the Appellant and his colleague. Also handed over to him were the two green sacks and the khaki sack, money in different denominations totaling to Ksh.3,175/=, a mobile phone belonging to the Appellant and an identification card No.33456379 in his name. Others received were a rolling stick, a spoon and a search certificate. PC Mutisya PW3 prepared handover notes to PC Ndolo. PC Ndolo took the suspects together with the exhibits to Malindi police station. He prepared an exhibit memo and escorted the consignment to the government chemist laboratory at Mombasa. He weighed them at 29.35 kg. 6.It was further evidence of PC Ndolo that he prepared an exhibit memo for the mobile phone confiscated from the Appellant and sent it to the Cyber Crime ATPU headquarters Nairobi to retrieve the available communication of the Appellant. He charged the Appellant with the offence. During the hearing of the case in court he produced the 435 rolls, 2 green sacks and one Khaki sack as exhibits, Exh.1 – 4 respectively. He produced the spoon, the rolling stick, Appellant`s identity card, the money and the Appellant`s mobile phone as exhibits, P.Exh.7-10 respectively. He produced the exhibit memo for the drugs and the exhibit memo for the mobile phone as P.Exh. 18 and 16 respectively. PC Mutisya PW2 produced the search certificate and handover notes to PC Ndolo as exhibits, Exh.5 and 6 respectively. PC Nyaga PW3 produced the inventory as exhibit, P. Exh.11. 7.The government analyst PW6 testified that he received three sacks of dry plant material from PC Ndolo of Anti-Narcotics Unit of Malindi police station that were accompanied by an exhibit memo. That he witnessed PC Ndolo weighing them at 29.35 kg. PC Ndolo prepared a weigh certificate that he identified as MFI-19. He was requested to ascertain whether the dry plant material were narcotics. He took samples from each sack and analyzed the contents. He found the dry plant material to be cannabis. He prepared a sampling certificate for the samples and prepared a government analyst`s report. During the hearing of the case in court he produced the sampling certificate and his analyst`s report as exhibits, P.Exh. 20 and 21 respectively. 8.An officer in charge of Anti-Narcotics Unit in Nairobi area PW4 testified that he is a gazetted valuer and a proper officer in compliance with section 86 of the Narcotic Drugs and Psychotropic Substances (Control) Act of 19994. That on the 20/2/2024 he received a phone call from Cpl Richard Mwalimu seeking to know the value of 29.35 kg of bhang. That he gave him a valuation of Ksh.880,500/=. That on 22/2/2024 he was presented with a charge sheet, a copy of the weighing certificate and a government chemists report. He considered them and valued the substance at the figure stated. He prepared a certificate of valuation dated 27/2/2024. It was his evidence that the value of one gram of cannabis is 30/= while that of a kilogram is Ksh.30,000/=. During the hearing he produced the certificate of valuation as exhibit, P.Exh.13. 9.An officer from Kenya Tourist Police Unit cyber crime investigations, PW5 testified that she has undertaken training in cyber-crime investigations. That on 26/3/2024 she received a Samsung mobile phone IMEI No.355962611214109 with a sim card inside. The same was accompanied by an exhibit memo. She was requested to do forensic examination of the phone. She extracted chats, images, videos etc from the phone that showed that the Appellant was dealing in bhang. The officer stored the information of interest in a CD. She prepared a cyber-crime report dated 15/3/2024 that was accompanied by a windows certificate as per section 65(8) as read with section 106 (b) of the Evidence Act. She prepared a report that the computer used was in good condition. During the hearing she produced the CD, the cyber-crime report and the computer certificate as exhibits, P.Exh.17A, B and C respectively. Defence case 10.When placed to his defence the Appellant stated in a sworn statement that he was living at Mtwapa in a 6-bedroomed house. He was living there with 5 other people. They were all paying rent. That on the 10/2/2024 at around 4pm he was sleeping in the house when he was woken up by a group of about 20 people. They searched the house and did not find anything. They asked for his identity card and he gave them They started to beat him. After about 30 minutes they brought a man tied with ropes into the room where he was. At 9 pm they were removed from the room and were tied with ropes. They were taken out of the house where they saw a sack. They did not know where it had come from. At around 11pm a police vehicle went there and took them to Mtwapa police station. On the following day they were picked and taken to Malindi police station. They were taken to court. He denied that he was found with bhang. He admitted in cross-examination that the mobile phone was his but he denied sending any photos of bhang over his phone. 11.The appeal was canvassed by way of written submissions. Appellant`s submissions 12.The Appellant submitted that the charge against him was not proved beyond reasonable doubt. That it was not proved that he was found in possession of any drugs. Reliance was placed in the case of Jean Wanjala Songei & another v Republic (2014) eKLR where it was held as follows on the meaning of the term possession:…Possession would invariably involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others. 13.It was submitted that the investigating officer was not at the scene and therefore his evidence was irrelevant. That no independent witness was called in the case. More so that the chain of custody of the drugs was not clear from the time of seizure to the time of submission to the forensic laboratory. 14.It was submitted that the trial court having found the Appellant`s co-accused not guilty of the offence, there was no basis for convicting the Appellant. 15.The Appellant faulted the trial court for not applying the principles of sentencing when it sentenced the Appellant. That the Appellant was remorseful and the court ought to have meted a lenient sentence. Respondent`s submissions 16.The Respondent on the other hand submitted that the charge against the appellant was proved beyond reasonable doubt. That it was proved that the bhang was recovered from the Appellant`s residence. That it was proved that he was in the business of trading in drugs. That the sim card that was recovered from his phone was registered in his name and he therefore cannot deny ownership of the same. That he shared photos of bhang in his phone with a person called Jerry. That he was in communication with a person called Boss who made inquiries on proceeds of sale of cannabis. That they shared hand written notes of the business of sale of bhang. It was submitted that the foregoing proved the Appellant`s knowledge of the bhang. Therefore, that possession was proved. 17.It was submitted that the sentence imposed on the Appellant was lenient considering that the sentence stipulated by section 4(a) of the Act is a fine of Ksh.1,000,000/= or 3 times the market value of the narcotic drug or psychotropic substance, whichever is greater, and in addition imprisonment for life. 18.It was submitted that the judgment of the trial court was legal and regular. The respondent urged the court to dismiss the appeal. Analysis and determination 19.This being a first appeal to the High Court, it is an appeal on both facts and the law. The duty of the first appellate court was succinctly captured by the Court of Appeal in Kiilu & Another V Republic, [2005] eKLR, to be as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion; it must make its own findings and draw its own conclusion. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 20.I have considered the grounds of appeal, the evidence on record and the written submissions of the parties herein. The issue that calls for determination is whether the prosecution proved the guilt of the appellant beyond reasonable doubt. 21.The Appellant was facing a charge of trafficking in drugs by storing them. The term “trafficking” is defined in section 2 of the Narcotic Drugs and Psychotropic Substances (Control) Act as follows:“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,….” 22.In Gabriel Ojiambo Nambesi V Republic, [2007] eKLR, the Court of Appeal addressed itself to the above definition and what is required to prove the offence of trafficking in narcotic drugs. The court stated thus:“It is evident from the definition of trafficking that the word is used as a term of art embracing various dealings with narcotic drugs or psychotropic substances. In our view for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking. In addition and more importantly, the prosecution should at the trial prove by evidence the conduct of an accused person which constitutes trafficking.” 23.The question is whether the appellant was found in possession of drugs and whether he was found trafficking them. 25.Section 4 of the Penal Code defines “possession” in the following terms:(a)“be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;(b)if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them. 26.The Black`s Law Dictionary 10th Edition defines the term “possession” to mean –The fact of having or holding property in one’s power, the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of the claim to the exclusive use of a material object. Something that a person owns or controls.” 27.The definition of possession connotes two elements –(1)being in physical control of the items of the offence and or in joint control with another(2)knowledge or intention of having the article, instruments, thing or items constituting the offence. 28.The court in the case of Jean Wanjala Songoi & Patrick Manyola v Republic (supra), expounded meaning of the term “possession” as quoted above. In Peter Mwangi Kariuki v Republic (2015) eKLR, Mativo J. held as follows on the subject:In my view, possession includes two elements; namely being in physical control of the item and knowledge of having the item. To be guilty of possession, an accused person must be shown to have knowledge of two things, namely, that the accused knew the item was in his custody and secondly he knew that the item in question was prohibited. A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it. 30.In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, where the Court of Appeal was constructing the provisions of Section 4 of the Penal Code held that the section encompasses both actual and constructive possession. The Court held that:In our view, under that provision, being in possession of the RDX does not require the appellants to be in actual, personal physical possession of it. So long as there is evidence on record that they knowingly had the RDX at the golf course for their own use or that of any other person, that will constitute possession within the meaning of the Penal Code. Indeed in Martin Oduor Lengo & 2 Others v. Republic [2014] eKLR and Chrispine Kent Otieno v. Republic [2017] eKLR, this Court affirmed that possession under section 4 of the Penal Code encompasses both actual and constructive possession. 31.The prosecution was therefore required to prove that the Appellant had the physical control of the bhang and that he had the knowledge of the existence of the bhang in the dog kennel. 32.There is in the first place no doubt that policemen found dry plant material in the dog kennel outside the house of the Appellant. There was no reason for the policemen PW1, PW2 and PW3 who were based in Nairobi to have fabricated the evidence against the Appellant. The Appellant signed the inventory of the things recovered from his house and compound. I therefore find that the substance was found in the dog kennel. 33.The said substance was taken to the government chemist where it was examined by a government analyst PW6 who found it to be cannabis. The green substance was confirmed to be cannabis as per the report of the government analyst, Exh.21 34.The Appellant admitted that the mobile phone that was produced in court belonged to him. A cyber-crime officer PW3 extracted his communication from the phone with a person name in the phone as Jerry wherein he sent him photographs of bhang that he was in his possession of with a caption, “hiyo ni bhangi bro”. Also extracted from the phone was his communication with a person called Boss wherein he was giving him accounts of the proceeds of sale of the bhang. There was no doubt from the communication that the Appellant was in the business of dealing with cannabis. 35.The kennel where the cannabis was found was just outside the house of the Appellant. The compound had a stone wall. It was then not possible that a person from outside would have planted the cannabis in a well concealed place at the back of the dog house. In view of the Appellant`s communication with Jerry showing that he was in possession of bhang and his proceeds of sale accounts shared with Boss, there was no doubt that the cannabis found in the dog house belonged to him. The Appellant was thereby found in constructive possession of the cannabis. 36.The Appellant was facing a charge of trafficking in drugs by storing them. The term “trafficking” is defined in section 2 of the Narcotic Drugs and Psychotropic Substances (Control) Act as follows:“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,….” 37.In Gabriel Ojiambo Nambesi V Republic, [2007] eKLR, the Court of Appeal addressed itself to the above definition and what is required to prove the offence of trafficking in narcotic drugs. The court stated thus:“It is evident from the definition of trafficking that the word is used as a term of art embracing various dealings with narcotic drugs or psychotropic substances. In our view for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking. In addition and more importantly, the prosecution should at the trial prove by evidence the conduct of an accused person which constitutes trafficking.” 38.The prosecution in this case did manage to prove that the Appellant had stored the cannabis in the dog kennel. Evidence was adduced that he was in the business of selling cannabis. His defence that he did not know where the exhibits were retrieved from was a lie. The charge of trafficking in narcotics by storing was proved against him beyond reasonable doubt. 39.On sentence, Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No.4 of 1994 provides as follows: 4. Penalty for trafficking in narcotic drugs, etc.Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her 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— (i) where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment; (ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment; (i) where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment; (ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment; (a) in respect of any narcotic drug or psychotropic substance— (i) where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment; (ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment; (i) where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment; (ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment; 40.The Appellant was charged under section 4(a) (ii) where the sentence for trafficking for possession of more than 100grams is a fine of not less than fifty million shillings or three times the market value of the narcotic psychotropic substance, whichever is greater or to imprisonment for a term of fifty years, or to both such fine and imprisonment. The Appellant was only fined Ksh.500,000/= in default to serve 10 years imrisonment. In view of the stiff sentence provided by the Act, I find the sentence to have been lenient. 41.The upshot is that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 19TH DAY OF JUNE, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant - present virtually at G.K Prison MalindiCourt Assistant – Rahma