[2021] KEHC 6496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL 248OF 2019

CHADWICK OKOTH DONDI..........................................................APPELLANT

VERSUS

REPUBLIC.........................................................................................RESPONDENT

(An appeal against the conviction and sentence in the Chief Magistrate’s court of JKIA, Criminal Case No. 195 of 2017, delivered by the Hon. L. O. Onyina Chief Magistrate on 28. 10. 2019)

JUDGMENT

The appellant herein,CHADWICK OKOTH DONDI,was charged before the lower court on 7. 11. 2017 (Charge read out on 8. 11. 2017) with 1 count of the offence of trafficking in 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 charge were that on the 2nd of November 2017 at Tassia in Embakasi within Nairobi County, jointly with others not before court, he trafficked in a narcotic drug namely Heroin to wit 2,976 grams with a market value of Ksh.8,928,000/= by storing a contravention of the said Act. He entered a plea of Not Guilty. The case then proceeded to full hearing in which the prosecution called a total of 8 witnesses.

After the conclusion of both the prosecution’s case and the defence case, the trial court made a finding of guilty and proceeded to convict the appellant and sentence him to a fine of Kshs. 20 million in default to serve 1 year imprisonment in line with section 28(2) of the Penal Code. In addition to this, the court also imposed a sentence of 15 years’ imprisonment.

Aggrieved of the conviction and sentence, the appellant filed his petition of appeal herein on 6. 12. 2019, listing upto 13 grounds of appeal. The grounds were as follows:-

1. THAT the learned trial magistrate erred both in fact and law by convicting the appellant when the prosecution had not proved their case of trafficking narcotic drugs by storing against the appellant beyond reasonable doubt.

2. THAT the learned magistrate erred both in fact and law by failing to resolve the apparent doubts in the prosecution case in favour of the appellant.

3. THAT the learned trial magistrate erred both in law and fact when he rejected the plausible defence by the appellant that he was wrongfully and unlawfully set up by the police while relying on very weak reasons and concocted evidence by the police to convict the appellant.

4. THAT the magistrate erred in fact and in law by failing to scrutinize and evaluate the prosecution’s case as a whole vis a vis the defence case thereby arriving at an erroneous decision to the detriment of the accused person.

5. THAT the learned trial magistrate erred in both fact and law in failing to hold hat the burden of proof at all times rested with the prosecution and could not shift to the appellant.

6. THAT the learned trial magistrate confused and misapplied the evidence in favour of acquittal of the appellant to convict him.

7. THAT the learned trial magistrate erred in both fact and law in failing to find that the prosecution’s evidence of PW1, PW3 and PW8 were contradictory in material facts which ought to be regarded as major inconsistencies.

8. THAT the learned trial magistrate erred in both law and fact when he made a partial evaluation of the evidence and finding in favour of the prosecution instead of awarding the benefit of doubt to the defence.

9. THAT the learned trial magistrate erred in both fact and law in overlooking the implications of PW5’s (PC Derrick Kiprono) absence at the scene, despite him stating the importance of the photographs in illustrating the scene during the search and recovery.

10. THAT the learned trial magistrate erred in both fact and law in overlooking contradictions and ambiguities in the prosecution evidence on the number of police officers present at the scene during arrests, and search, consequently of the crime scene.

11. THAT the learned trial magistrate erred in fact and law in concluding that the appellant’s personal documents were found in the master bedroom with the recovered narcotics drugs.

12. THAT the learned trial magistrate relied on speculation, probabilities and possibilities to convict the appellant.

13. THAT the learned trial magistrate erred in fact and law when he failed to find that the prosecution did not prove the ingredients of the offence of trafficking in a narcotic drug.

The appellant has pleaded that this appeal be allowed, and that the conviction and the sentence be set aside, quashed and varied. The Respondent has on the other hand urged that this appeal be dismissed. By agreement of the parties, this appeal was canvassed by way of written submissions. Indeed, both the appellant and respondent sides complied did filed their set of submissions.

In the submissions of the appellant, several grounds listed as above in the petition of appeal have been merged and argued as follows:-

For grounds 1 and 13, it was submitted that the prosecution did not prove its case beyond reasonable doubt. The case of Pius Maina Versus Republic (2013)eKLR, was relied on. That the prosecution did not prove that the appellant was linked to the syndicate or the drug activities, even by storing. That the only nexus was that the drugs were found in the room he was sleeping in. counsel relied on the case of Gabriel Ojiambo Nambesi Versus Republic (2007)eKLR, that it is incumbent upon the prosecution to specify clearly the conduct of the accused which constitutes trafficking. That from the evidence of PW1, PW3 and PW8, there is nothing to prove that the appellant trafficked in the drugs by storing.

It was further submitted that it was the evidence of the appellant that this house was frequented by many other people and not only the appellant, and that even PW1, 3 and 8 confirmed that he was arrested with 2 other men. That one Chris Magero (DW4) even testified as to having lest the house just before the arrest of the appellant.

Regarding grounds 2 and 5, it was submitted that the prosecution’s case had several inconsistencies which created doubts in the same, and which should have been resolved in favour of the appellant. That there was a doubt as to whether the drugs were stored by the appellant, the number of police officers at the scene. And the fact that other people also lived in the house. Counsel alleged that the drugs may have been brought in by the police officers. Also, that there is a doubt as to the exact room where the appellant’s documents were found (PW1, PW3 PW8).

On ground 3, it was submitted that the defence of the appellant was that this was a set up by the police. On this, the submissions were based on the manner in which the police gained access to the house, how he was manhandled, before seeing one police officer holding the sack containing the narcotic drugs, that he was then made to sign a piece of paper he did not understand. It was firmly stated that it was inconsequential that he did not see the police officers come into the house with the narcotics.

Grounds 4, 7, 8, 10, 11 and 12 were taken together. Again the submissions were based on the inconsistencies on the number of police officers present in the master bedroom. That whereas PW3 and 8 stated the search started at the bed room, PW8 said it started at the sitting room. Also that PW8 stated that the documents of the appellant were recovered from the master bedroom while PW1 stated it was from the other bedroom. Further, that regarding DW3 (Nelson Otieno), PW1 said he was one of the people found in the house, while PW3 and 8, said he had been intercepted as he was leaving the compound of the premises. That these contradictions create doubt in the prosecution’s case. He relied on Elizabeth Waithiegeni Gatimu Versus republic (2015)eKLR, on the issue of proof of guilt beyond reasonable doubt, and that a single circumstance creating a reasonable doubt is sufficient to ensure acquittal of an accused.

From the prosecution side, the submissions were an analysis of the evidence of the prosecution to show that the same were consistent, well corroborated and leaving no doubt as to the guilt of the appellant for the offence charged.

This court is sitting over this matter as a first appellate court. As rightly submitted by counsel for the appellant, the jurisdiction and latitude of a first appellate court were well settled in the old case of Okeno Versus Republic (1972)EA 32 that the 1st appellate court must itself weigh conflicting evidence and draw its own conclusion.

The Court of Appeal in David Njuguna Kariuki Versus Republic (2010)eKLR, summed the same, thus;

“The duty of the 1st appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions.”

This court is bound by this determination, it is imperative that this court do consider the whole evidence herein, re-evaluate the same and ultimately reach its own determination.

From the prosecution side, the case started off with the evidence of PW1 PC Caroline Karembo that on 2. 11. 2017, she was on operation with other police officers, PC Muriuki and Corporal Otando. On reaching a building at Tassia, house number B3, Corporal Otando knocked the door and the same was opened. They entered and found 3 men in the sitting room and accordingly introduced themselves. That one of the men introduced himself as Chadwick Okoth Dondi, the owner of the house, while the other 2 said they were visitors. They requested to search the house and the owner complied. PC Odhiambo carried out the search as they witnessed, starting with the master bedroom. From the wardrobe PC Odhiambo recovered 3 packages in a white sack containing creamish substance they suspected to be narcotic drug. The search extended to the other bedroom where some documents were recovered. The search went on to the kitchen and the toilet. Back at the sitting room a search certificate was prepared by PC Odhiambo, which was signed by officers present, being Corporal Tanki, PC Odhiambo, PC Karembo, PC and Chadwick Okoth and 2 visitors Nelson Otieno Odera and George Odhiambo Ondigo. This witness identified the relevant exhibits. She proceeded to make an inventory of the recovered to make an inventory of the recovered items including the 1 identity cards of appellant and the other 2 men, passport of appellant, an iPhone mobile number A1524, Imei 354435061314753, mobile iPhone, Techno Phantom 6, Macbook air mode No. A1369, Cooperative Bank cheque book, and other items listed on the inventory. That the inventory was signed by the appellant and Nelson Otieno Odera and witnessed by George Odhiambo. She signed it also. The other police officers also witnessed same.

She confirmed that they acted on information, and the operation was by different agencies. In her evidence the ant-narcotics officers were 3 while the others were 7, and the search started at the sitting room, then to the kitchen, then toilet, then the master bedroom, which the appellant confirmed was his bed room. They then went to the other bedroom.

PW2 Lewis Mawira, is the caretaker at the house. His testimony was that the House B3 had 3 occupants and there was one who used to come occasionally. The occupant he knew to be the tenant was known to him by one name Chaddy as he used to hear him being called so.

And PW3 PC Isaac Muriuki, stated that he had been with PW1 and other officers during the operation. That on reaching the premises, they intercepted 1 suspect as he was driving out of the compound in motor vehicle KBH 110M and took him back to Horse No. B3, where they found 3 others. He witnesses the search and recovery by PC Odhiambo. That the man they had intercepted while driving out of the compound is Nelson Otieno, while the third one was George Odhiambo. The one charge was the 3rd one Chadwick Okoth Dondi. The 4th witness, PW4 was Denis Owino Onyango an analyst with the Government Chemist. He produced the exhibits. And PW5 corporal Derik Kiprono and PW6 Joshua Okalo gave evidence on how they handled the same. Also PW7, Chief Inspector Elizabeth Lumumba.

PW8, PC George Odhiambo, was the one who had carried out the search. The evidence he gave was that they had found 2 people in the house while one was intercepted while driving away. That they were told that the owner of the house was the present appellant. They then conducted the search in the presence of the appellant, starting with the bedroom (main). He made the recoveries and prepared a search certificate. In court, the formally produced the exhibits.

The appellant gave a sworn defence in which he stated that, he was still in bed when he suddenly found police officers inside his room. He was pulled to the sitting room and roughed up and ordered to lie down facing down. He could hear movements back and forth. He was later taken back to his bedroom where they found 2 men, one holding a sack, the same sack produced in court. He was then taken to the next bedroom where his personal items were recovered. He confirmed that George Odhiambo had come to visit him and had slept in his house, while Nelson was managing his barber shop and had come to update him. He was then given a piece of paper to sign without going through the same. He signed same. He maintained that 10 officers were involved.

The appellant’s evidence was that he had jumped to the bedroom to leave the other bedroom to his 2 guests. And that this explains why his bag and personal items were found in the other bedroom. That 3 of them co-own the house and he does not have a specific bedroom. That he co-owns it with one Bruce and Chris who were then not in the house. He denied knowledge of where the officer got the sack from. Neither did he know what he had signed. That he only later learnt that one Austin Igwilo had mentioned his name, a man he had met on a flight in 2016 while he worked as a cabin crew for Kenya Airways. In his evidence, the wrappings on the drugs found in Austin’s house were similar to the present ones. He maintained that the same items recovered from Austin were used to set him up.

On being cross-examined, the appellant admitted that when the police came to his house, he was not the first person they interacted with at the door. He never saw any of the police officers come into the house with anything, and on being presented before the court, his advocate never raised any issue of his injuries. He otherwise stated that for Austin, 22 packages were recovered, but that he had never interacted with any of the officers who arrested him. And that the officers who arrested him were not in the same as those who had arrested Austin Igwillo. He maintained that he was forced to sign the documents.

The 2nd witness for the defence DW2 was Mary Mueba Masika, a freelance journalist. Her evidence was that on request by one client named Michuki, she used her computer S/N TRF2200SQQ to burn a clip on a DVD. He then prepared a certificate which she produced. She confirmed that she was not present when the clip was made and would not know what the original content would be.

DW3 Nelson Otieno Odera on his part, testified that he worked for the appellant at his barber shop at Komarock, and had gone to see him that evening over business. He spent the night at the house of the appellant, leaving him and George at the sitting room. To him, the house was owned by the appellant and his cousin Chris whom he had once found there. Or also with one Bruce Dondi.

That in the morning, appellant gave him his car to go to work, only to be intercepted and taken back. He pointed at the appellant as the owner of the house. Him and George remained at the sitting room as the appellant was taken to the bedroom. They later came back with a bag, car keys and papers. They were then told to sign on a paper the police had been recording the things in the bag. They signed the paper; he said without knowing what it was. He confirmed that he signed the document out of fear, but that nobody terrified him.

And DW4, Chris Ojunga Magero, gave evidence that in 2017, he was staying at Tassia, House B3. He had no lease agreement. He was sole tenant till his 2 cousins, the appellant and Bruce Dondi joined him on agreement to share costs. That on the material date, he was away in Umoja, only to go home the following day to find the house locked. He learnt from the caretaker that the appellant had been arrested. The caretaker refused to open for him. With Bruce, they later removed the households from the house.

I have considered the whole evidence of both sides as put before the trial court. I have also considered the submissions made by both the appellant and Respondent sides in this appeal and also the authorities cited and relied on. This case is one of narcotic drugs. Namely heroine. The one thing that is agreed by both sides is that substance produced herein as exhibits 2, 3 and 4 are heroine, a narcotic drug under the Narcotic Drugs and Psychotropic substances (Control) Act, No. 4 of 1994. The quantity and identity of the substance is also not issue in this appeal.

As stated above, the appellant has synchronized the 13 grounds listed on the petition of appeal and argued the same as 4. On my part, the following issues come up for determination in this appeal.

i) Whether the appellant trafficked in the said narcotic drugs by storing as charged.

ii) Whether the prosecution proved the case against the appellant beyond any reasonable doubt as required by the law.

iii) The issue of sentence.

On the first issue, the appellant was charged with Trafficking in Narcotic Drug Contrary to Section 4(a) of the Act. At the interpretation section 2 of the Act, trafficking is defined.

“Trafficking means the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug…..”

Storing is therefore one of the ways by which narcotic drugs may be trafficked. In our instant case the case of the prosecution is that the narcotic drugs were recovered stored or kept in the bedroom of the appellant. That the police officers had acted on information. It was further the evidence of the prosecution that upon recovery, done in the presence of the appellant, an inventory of the recovered drugs and the other items of the appellant was done and duly signed by both the police officers and the appellants and the 2 other men in his house. These exhibits together with the inventories were produced in evidence. The prosecution witnesses, PW1, 3 and 8 corroborated each others evidence that the recovery was done in the master bedroom of the appellant.

The appellant, on the other hand, has maintained that the police who raided his house must have planted the narcotics in his house; he made a testimony that the police may have planted on him the same drugs recovered from the house of one Austin Igwilo. Also that he co-owned the house with 2 other men Chris and Bruce Dondi, and that he had left the other bedroom for the 2 visitors, George Odhiambo and Nelson Otieno (DW3). And that this explains why his documents were found in the other bedroom.

This court is therefore obliged to determine which of the 2 sides gave credible evidence on the ownership of this house and therefore the one responsible or liable for storing the drugs in this particular room or the house generally, if at all.

Foremost, is the evidence of the 3 police officers, PW1, 3 and 8, that the drugs were found in the master bedroom of the accused. Also that upon entering the house and introducing themselves, the appellant, on being asked confirmed that he was the owner of the house and that the other 2 were his visitors. Second, is the fact that the search done in the house yielded only personal documents of the appellant and none of the other 2 men he claimed to be his co-owners. Further, by his own admission and also the evidence of his witness (DW3), they did not see any of the police officers enter the house while carrying anything. In any case, this incident appears to have attracted the attention of media houses and camera. On record, the only mention of photo’s being taken by the media are those showing the suspects being led away in handcuffs. There was no mention of any photos of any of the police officers entering the house while carrying anything.

There is also the evidence of PW2, Lewis Mawira, that he knew only the appellant whom he knew as Chaddy as the tenant in the house.

It is also clear that an inventory of what was recovered from the house was made. The same bears the signatures also of the appellant and his visitors, DW3. In their testimonies, both the appellant and DW3 said they saw the police officer write on a piece, which on being asked to sign, they signed without reading the contents of the same. DW3 said he was not intimidated to sign the same. The appellant, however, gave evidence that he was beaten and forced to sign the same. With respect, this evidence does not match with that of DW2 who did not witness such force being used to compel the applicant to sign. And when he was presented to court, and with legal representation, the appellant clearly did not raise this issue before the court.

The appellant clearly raised the issue of one Austin Igwillo as an afterthought. Throughout the prosecution’s case, he never brought up the same only waiting to state the same at his defence.

Further, in my view, the appellant sounded uncertain of his defence. At one time, he claimed that the police planted the exhibits on him. At another time, he seemed to suggest that the exhibit may have belonged to one or the other of his co-owners of the house. On my part, I am not persuaded by either of these defences.

The appellant called DW4, Chris Ojunga as his witness. The witness stated that he was the original tenant in the house before the appellant ad Bruce Bondi joined him in the house. Whereas this witness was unknown to the caretaker of the house (PW2), the witness had no evidence of any lease to the house. None of his personal items were recovered from the house. And even after the arrest of the appellant, it took a phone call between the appellant and PW2 for this witness to be allowed to remove the households. This clearly show that this witness was not a known or legal tenant in this house and that his evidence was totally untruthful.

The accused in his submissions has maintained that the prosecution’s case was full of contradictions which had the effect of creating a doubt as to whether the prosecution proved the case beyond any reasonable doubt as required by the law. Among the inconsistencies submitted on were:-

i) The number of persons present when the narcotic drugs were found.

ii) The question as to where exactly the search started.

iii) The question of where DW3, Nelson Otieno was when he was apprehended by the police.

iv) The question of how many police officers were involved in the operation.

The issue for this court to determine is whether these inconsistencies were material enough as to create any doubts as to the prosecution’s case. I answer this in the negative. And I do so in view of the fact that it is admitted that this operation was carried out by multi-agency officers and investigators. The number of the officers involved could possibly not have been known by each participating officer. As to the apprehension of DW3, the fact remains that he was arrested and was present in the house as the search was conducted in the house. Again, as to the order in which the rooms were searched, the court noted the high number of persons involved in the search. The evidence of PW8would, to me, give the correct position as he was the one who did the specific recoveries. The most important evidence, however, is that the recovery of the narcotics drugs was done at the master bedroom of the appellant. And that following the said recovery, an inventory of the recovered exhibits was prepared in the house. The said inventory, prepared in the presence of the applicant, was duly signed by both the appellant and his witness, DW3, and the police officers who did the recovery.

These circumstances clearly confirm that these inconsistencies, if at all, were minor in nature and fell far short in creating any doubts on the prosecution’s case. The trial magistrate, I must say properly considered this limb of the submissions and relied on Dickson Mbeya Marene and Another Versus Republic (Criminal Appeal No. 68/2016), that;

“As regards the alleged contradictions, we do not think much turns on that. It is trite law that not every contradiction warrants rejection of evidence.”

The effect of the above position held by the Court of Appeal is that not all contradictions are material enough to derail the import of the prosecution’s case. As stated above, I find the alleged contradictions minor in nature and the same, if at all, cannot amount to causing any reasonable doubt in the prosecution’s case.

This court is convinced that the evidence produced by the prosecution clearly proved beyond any doubt that the appellant was the legal tenant and or owner of House No. 3B where the narcotic drugs were recovered. The same were recovered in the master bedroom in his presence. His defence and denial do not therefore hold any merit at all. I dismiss the appellant’s defence and denial.

The prosecution is under the law required to prove the guilt of the accused beyond any reasonable doubt. This is the authority in the English case of Woodmington Versus DPP (1935) AC 462 quoted by the counsel for the appellant in the counsel for the appellant in the final submissions. In this case, I am persuaded beyond any doubt that the prosecution discharged this burden. I therefore find in the affirmative the second (2nd) issue for determination as listed above.

On the issue of sentence, the appellant was charged with the offence of trafficking in a Narcotic Drug and Psychotropic substances (Control) Act, No. 4 of 1994. In the sentencing proceedings of the trial court, it is on record that the court took into account the mitigation of the appellant, the quantity and value of the drugs and was guided by the Court of Appeal decisions in Mohamed Famau Bakari Versus Republic (2016)eKLR, and Caroline Auma Majabu Versus Republic (2014)eKLR.

Section 4 of the Act states;

“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 1 million shillings or 3 times the market value of the narcotic drug or psychotropic substance, whichever is greater, and in addition, to imprisonment for life.

In the Court of Appeal case of Benard Kimani Gacheru Versus Republic (2002)eKLR, the court gave directions thus;

“it is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence, unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factors, or took into account, some wrong material, or acted on a wrong principle. Even if the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist”

Three times the market value of the narcotic drugs the appellant was charged with is Ksh.26,784,000/=. And in addition the sentence is life imprisonment. The trial court sentenced the appellant to a fine of Ksh.20,000,000/=. And in addition, it passed a sentence of 15 years’ imprisonment. I am convinced that these sentences passed by the trial court are legal and within the jurisdiction of the court. I confirm the same.

The court is accordingly convinced therefore that the trial magistrate properly analysed the evidence before him and arrived at the proper determination that the prosecution discharged its burden of proof and proved the case against he accused beyond any reasonable doubt. The trial magistrate, similarly proceeded to mete out a legal sentence. This court has reached the same finding on conviction. And the sentence, being proper and legal, this court finds no reason to interfere with the same. I accordingly confirm the finding and sentence of the trial court. The appeal of the appellant filed herein on 6. 12. 2019, lacking in any merit is hereby wholly dismissed

D. O. OGEMBO

JUDGE

2. 6.2021.

Court:

Judgment read out in open court (on-line) in the presence of the appellant (Kamiti prison), Mr. Magaka for the appellant, and Ms. Chege for the state.

D. O. OGEMBO

JUDGE

2. 6.2021.

Court:

It is noted that this Judgment has been pending delivery due to the various court disruptions due to covid-19 restrictions and protocols.

D. O. OGEMBO

JUDGE

2. 6.2021.