https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13084

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E053, E065 & E066 OF 2026 (CONSOLIDATED)** **LENNOX CHENGEK CHESTIT……………………...…..……1ST APPELLANT** **ALFRIC ODHIAMBO OTIENO…………..…………..……..2ND APPELLANT** **KENNETH SINZORE ISUNDU……………..…….………….3RD APPELLANT** **VERSUS** **REPUBLIC……………………………………..……..………..PROSECUTION** *(Being an appeal against the judgment on conviction delivered on 8th October 2025 and sentence passed on 20th November 2025 by Hon. Njeri Thuku (SPM) in JKIA MCCR 192 of 2017)* **JUDGEMENT** 1. The 1st Appellant, Lennox Chengek Chestit, was jointly charged with the 3rd Appellant, Kenneth Sinzore Isundu, in Count I with trafficking in 10,045.70 grams of heroin, valued at Kshs. 30,137,100, by conveying the same in black crew cabin luggage at Jomo Kenyatta International Airport on 2nd November 2017, contrary to section 4(a), as read with section 2, of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. 2. In Count II, the 2nd Appellant, Alfric Odhiambo Otieno, was jointly charged with Kenneth with trafficking in 9,845.70 grams of heroin, valued at Kshs. 29,537,100, by conveying the same in black crew cabin luggage at JKIA on the same date, contrary to the same provisions. 3. The appellants pleaded not guilty and, following trial, were convicted on the respective counts. In Count I, Lennox and Kenneth were each sentenced to 25 years’ imprisonment and a fine of Kshs. 88,611,300, in default one year’s imprisonment. In Count II, Alfric and Kenneth were each sentenced to 25 years’ imprisonment and a fine of Kshs. 90,411,300, in default one year’s imprisonment. The default sentences were ordered to run concurrently. 4. Aggrieved by the conviction and sentence, each of the appellants filed separate appeals which were subsequently consolidated by this court. In their respective appeals, the 1st Appellant, Lennox, challenged his conviction on the basis that the trial Court failed to properly evaluate material contradictions, inconsistencies and gaps in the prosecution evidence. He contended that the circumstantial evidence did not meet the requisite legal threshold and that the Court relied on speculative and extraneous matters. He further challenged the recovery of the alleged narcotics, the failure to call material witnesses present during the search, and the trial Court’s interpretation and identification of persons in the CCTV footage. 5. The 2nd Appellant, Alfric, challenged the conviction on the alleged breakdown of the chain of custody, failure to recall material witnesses under section 200(3) of the Criminal Procedure Code, reliance on defective documentation, and failure to consider exculpatory evidence. He pointed to contradictions concerning the recovery and marking of the narcotics and discrepancies in exhibit identification numbers. He further challenged the Notice of Intention to Tender Records in Evidence and relies on PW12’s inability to identify him from the CCTV footage. 6. The 3rd Appellant, Kenneth, submitted that his conviction was based on speculation and circumstantial evidence that fell below the required threshold. He contended that no narcotics, fingerprints, call data or messages linked him to the offence and that the burden of proof was improperly shifted to him. He further challenged the sentence of Kshs.179,022,600 as excessive and founded on extraneous considerations and an unproved finding of organised criminal activity. 7. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see **Okeno vs Republic [1973] EA 32**). 8. The prosecution called fourteen witnesses in support of their case. PW3, Bernard Mbugua Gikaru, a Kenya Airways security officer, testified that on 2nd November 2017 at about 6.00 a.m., he was instructed by his supervisor, Micah Chepkiyeng, to join a multi-agency team investigating suspected narcotics trafficking. They were trailing motor vehicle registration number AV 423, allegedly driven by the 3rd appellant, Kenneth Sinzore. At Bay 16, PW3 obtained the General Declaration Form from PW1, Sheilla Nzioka, and handed it to the police officers, who identified the 1st appellant and the 2nd appellant, Alfric Odhiambo, as cabin crew members of interest. 9. PW3 testified that he accompanied the officers to the aircraft parked at Bay 19, where the crew were instructed to identify their luggage for a search. The 1st appellant and the 2nd appellant opened their bags, from which suspicious packages wrapped in blue and red polythene material were recovered. PW3 further stated that a red and black bag found beside the 1st appellant's crew bag was disowned by the 1st appellant, who was thereafter restrained and seated at the front of the aircraft alongside the 3rd appellant. 10. PW2, Boniface Njoroge Nganga, an inflight engineer, testified that he had been deployed to secure one of the aircraft doors to prevent movement during the search. He stated that the 1st appellant attempted to leave the aircraft but was restrained by National Youth Service officers and returned to the cabin. 11. PW1, Sheilla Nzioka, the flight purser, confirmed that twelve crew members had been scheduled to operate the Nairobi - Lagos flight. Shortly after the crew briefing commenced, Anti-Narcotics Unit officers entered the aircraft and directed all crew members to stand beside their respective luggage for inspection. During the search, she heard a commotion and observed a Kenya Airways security officer restraining the 1st appellant before seating him at seat 1A. She testified that the search continued for about three hours before additional officers arrived to photograph the scene. She did not witness the recovery of the alleged narcotic drugs. 12. PW6, PC David Mugambi, testified that he joined PW13, Chief Inspector Martin Ndegwa, and PW14, Sergeant Dickson Omumia, in searching the aircraft. He stated that the 3rd appellant facilitated the loading of luggage belonging to the 1st and 2nd appellants into the aircraft. According to PW6, one packet of suspected narcotics was recovered from the 1st appellant's black suitcase together with his passport, national identity card and medical card, while a black backpack attributed to the 1st appellant contained nine additional packages and a personal identification document. 13. PW13 testified that the search yielded a black backpack from the aircraft coat room and a carry-on suitcase attributed to the 1st appellant. The backpack contained nine sachets of suspected narcotics, while the suitcase contained one sachet. All ten sachets were wrapped in gift paper. PW14 corroborated this evidence. PW13 prepared a search certificate, which was signed by PW7, Captain Parul Patel, the pilot. 14. During cross-examination, PW1, PW2, PW3, PW6, PW13 and PW14 all confirmed that no inventory was prepared at the aircraft when the exhibits were allegedly recovered. 15. PW5, PC Gaudencia Olweny, a scenes of crime officer, photographed the suspected narcotics and motor vehicle registration number AV 423 and produced the photographs in evidence. 16. After the arrest, the appellants were escorted to the Anti-Narcotics Unit offices at JKIA. PW8, Inspector Luke Kinoti, testified that he prepared the appellants’ inventory at those offices after the suspects had been brought in. He confirmed that the exhibits had not been labelled before then. PW13 similarly testified that he first marked the recovered substances as exhibits at the ANU offices. PW3 confirmed this position during cross-examination. PW9, PC Bernard Nyolei, prepared the inventories relating to the 2nd and 3rd appellants. 17. PW10, Joshua Okalo, weighed and valued the alleged narcotic drugs. He testified that the substances attributed to the 1st appellant weighed 9,845.7 grams and assigned them a street value of Kshs. 29,537,100, based on Kshs. 3,000 per gram. The substances attributed to the 2nd appellant weighed 10,045.7 grams and were valued at Kshs. 30,137,000. He produced the weighing and valuation certificate. PW11, Corporal Derrick Kiprono, photographed the weighing process and produced the photographs. 18. PW4, Denis Onyango Owino, a Government Analyst, testified that on 3rd November 2017 he sampled the exhibits and analysed them using an ultraviolet visual spectroscope. He concluded that the substances contained heroin with a purity level of 35 percent. During cross-examination, he acknowledged that the 1st appellant was not represented by an independent witness during the sampling process. 19. PW12, Inspector Kennedy Karonji Wanyoike of the DCI Cybercrime Forensic Unit, testified that he analysed CCTV footage obtained from the 510 - camera surveillance system at JKIA. He extracted sixty-nine video clips from eleven relevant cameras and presented them in court. The footage depicted the movements of a pick-up vehicle through various airport bays, persons loading luggage, and, in the final clips, a man attempting to open the aircraft door before being restrained and escorted back into the aircraft. During cross-examination, PW12 stated that he did not know any of the accused persons before the investigation and was unable to identify them from the CCTV footage. 20. After the close of the prosecution’s case, the appellants were found to have a case to answer and were put in their respective defences. 21. In his sworn defence, the 1st appellant testified that on 2nd November 2017 he was picked from his residence at about 5.15 a.m. by a crew bus and arrived at JKIA at approximately 5.35 a.m. He proceeded through Terminal 1A, underwent the mandatory security screening using his crew identification card, and passed both the terminal and secondary screening points without any prohibited item being recovered from him or his luggage. 22. He stated that he thereafter proceeded to Bay 19, boarded the aircraft at about 5.50 a.m., placed his crew bag in the coatroom at the rear of the aircraft, and joined the other cabin crew for the pre-flight briefing. During the briefing, Anti-Narcotics Unit officers entered the aircraft, identified themselves and informed the crew that they were investigating two cabin crew members suspected of trafficking narcotics. The crew were directed to stand beside their luggage for inspection. 23. The 1st appellant testified that PW14 searched him and his bag but failed to make any recovery. He stated that shortly thereafter Kenya Airways security personnel demanded his mobile phone, slapped him when he declined to unlock it, restrained him and moved him to the business class section. Fearing for his safety, he attempted to flee but was apprehended and returned to the aircraft. He alleged that he then saw PW14 lift a blue foil package and tell him to claim it, which he refused to do as he had never seen it before. 24. He further testified that his identification card, phone and luggage were taken from him before he was escorted to the Anti-Narcotics Unit offices, where inventories were prepared without legal representation. He denied ownership or possession of any narcotic drugs and stated that a subsequent search of his residence did not yield anything incriminating. He also denied knowing the 3rd appellant before his arrest. 25. The 2nd appellant testified on oath in his defence. He denied committing the offence and maintained that he was innocent. He testified that on the material day, he was engaged in his normal activities and was not involved in the events giving rise to the charges. He denied being present at the scene of the alleged offence and asserted that he had never acted in concert with the co-accused or any other person to commit the offence. 26. He further testified that he was arrested without any valid reason and was not informed of the basis of his arrest. According to him, he was taken into police custody and later charged with an offence he did not commit. He maintained that the investigating officers failed to conduct proper investigations before preferring the charges against him. 27. The 2nd appellant denied any knowledge of the prosecution witnesses or the exhibits produced during the trial. He stated that none of the recovered items belonged to him and that no witness positively identified him as having participated in the commission of the offence. He contended that the prosecution had merely associated him with the offence without credible evidence linking him to the alleged criminal acts. 28. During cross-examination, he maintained his position that he was innocent and denied the allegations levelled against him. He insisted that the prosecution case was based on speculation and suspicion rather than cogent evidence. He urged the Court to find that the prosecution had failed to prove its case beyond reasonable doubt and to acquit him. 29. In his defence, the 3rd appellant told the court that he had worked for Kenya Airways from 1998 until 2017, serving as a Turn-around Coordinator and Shift Leader in the Unit Load Devices (ULD) Control Unit, where he supervised staff responsible for aircraft pallets and containers. He testified that on 2nd November 2017, he reported for duty at about 6.15 a.m., passed through the required security screening and biometric checks, and proceeded to his office before joining the outgoing shift leader, Norbert, for the routine handover at the passenger terminal. 30. He testified that while seated in the driver's seat of the pool vehicle, registration AV423, waiting for Norbert to complete the handover process, an unidentified man approached him, asked for his name, seized his staff pass and later identified himself as a police officer. He was instructed by Kenya Airways security officer Bernard Mbugua to drive the vehicle to Bay 20, where it was searched, but nothing was recovered in his presence. He stated that he was thereafter escorted onto an aircraft and made to sit in the business class section without being informed of the reason for his detention. 31. The 3rd appellant testified that he first saw the 1st and 2nd appellants inside the aircraft and had never met either of them before. He stated that after disembarking from the aircraft, a Kenya Airways security officer, Mr. Limo, produced a bag from the pickup vehicle and alleged that it belonged to him. He denied ownership of the bag, stating that it resembled a cabin crew bag and had no connection with his duties as ground staff. He further testified that the vehicle had not yet been officially handed over to him, as the prescribed handover forms had not been completed, and remained a pool vehicle used by several team leaders. 32. He stated that he was taken to the Anti-Narcotics Unit offices, where the bag was labelled with his initials, although he had never claimed ownership of it. He denied that fingerprint or forensic examinations were conducted on the bag and stated that he was not allowed to contact his family or legal representative. He further testified that although CCTV cameras covered the airside, no footage linking him to the alleged narcotics was produced before the court. 33. The 3rd appellant denied any involvement in drug trafficking and maintained that no evidence connected him to the narcotic drugs. He testified that he never handled the recovered bag, never interacted with the co-accused before his arrest, and remained unaware of how the narcotics came to be associated with him. During cross-examination, he maintained that he was lawfully performing his duties at the time of his arrest and denied giving anything to or receiving anything from the other accused persons. He urged the court to find that the prosecution had failed to establish any link between him and the narcotic drugs and to acquit him. 34. The Appellants were charged with trafficking in narcotic drugs by conveying contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act. Section 2 of the Act defines trafficking to include “**conveyance**” of a narcotic drug. **In Chuba Abdalla Mbwana v Republic, Criminal Appeal No. 279 of 2010,** the Court of Appeal held: *“to prove trafficking by conveying it must be alleged (and proved) that the Appellant was found in the act of conveying the narcotics from point A to point B.”* 1. Similarly, in **Antony Mbithi Kasyula v Republic, Criminal Appeal No. 134 of 2012, the Court of Appeal** held that **“transporting”** as used in a charge sheet bears the same meaning as **“conveying”,** namely carrying or transferring something from one place to another. 2. The prosecution was therefore required to prove beyond reasonable doubt that the substances recovered were narcotic drugs and, more importantly, that each Appellant was in possession of the drugs while conveying them from one place to another. PW4 confirmed that the recovered substance was heroin with a purity of 35%, while PW10 valued the same. The principal issue is therefore whether the prosecution established a reliable evidential nexus between the Appellants and the narcotics. 3. The evidence on discovery and seizure was given by PW1, PW3, PW6, PW7, PW13 and PW14. PW3 testified that, after receiving the General Declaration Form, police officers identified Lennox and Alfric as persons of interest before the search commenced. The officers thereafter searched the aircraft at Bay 19. One package was allegedly recovered from Lennox’s suitcase, while nine packages were found in a backpack beside it, which Lennox immediately disowned. Ten packages were allegedly recovered from Alfric’s suitcase. 4. The 1st and 3rd appellants challenged the discovery of the narcotics. From the record, the prosecution witnesses confirmed that no inventory was prepared at the scene. The search certificate was signed only by PW7 and the pilot, and none of the crew members present at the search signed or witnessed the alleged recovery. The narcotics and the Appellants’ personal belongings were labelled only later at the Anti-Narcotics Unit offices. PW1 further testified that photographs were taken approximately three hours after the alleged seizure. 5. The importance of maintaining an unbroken chain of custody cannot be overstated. The chain must sufficiently account for the seizure, identification, labelling, transfer, analysis and production of the exhibits. Any unexplained gap which creates doubt as to the identity or integrity of the substance undermines the prosecution case. The applicable standard is proof beyond reasonable doubt. As stated by Lord Denning in **Miller v Minister of Pensions [1947] 2 All ER 372:** *“It need not reach certainty, but it must carry a high degree of probability... the case is proved beyond reasonable doubt, but nothing short of that will suffice.”* 1. In Lennox’s case, the prosecution was required to establish that he had access to the aircraft and attribute the luggage where the narcotics were recovered to him before the search. PW12 analysed CCTV footage from cameras covering Bay 19, but no footage demonstrated who carried the backpack into the aircraft or identified all persons who had access to it. Lennox and Alfric testified that the aircraft was already open when they boarded, an account corroborated by PW2. 2. This evidence was material because Lennox expressly denied ownership and knowledge of the backpack and its contents. In the circumstances, the prosecution was required to exclude the reasonable possibility that the backpack had been brought into the aircraft by another person or had been inside the aircraft before Lennox boarded. It did not do so. No identification tags or other evidence linked Lennox to the backpack. 3. The evidence further established that Lennox was restrained and seated at Seat 1A at the front of the aircraft while the search continued at the rear. This aspect of his defence was substantially corroborated by PW1, PW2, PW3, PW6, PW13 and PW14. It was therefore material that the alleged recovery occurred in his absence. No senior crew member was called to witness the recovery and no inventory was prepared inside the aircraft. 4. Lennox further testified that, upon being returned to the aircraft, PW14 held up a package and told him, **“chukua hii ni yako**”. That evidence was not effectively rebutted. It was also consistent with PW3’s evidence that Lennox denied ownership of the narcotics. The prosecution did not satisfactorily explain the circumstances in which the exhibits were recovered, handled, photographed and subsequently labelled. 5. Mr. Limo who was alleged to have manhandled Lennox during the search was not called as a prosecution witness. His evidence was material to the circumstances in which the alleged recovery occurred. In **Bukenya & Others v Uganda (1972) EA 549,** the Court held: *“The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have been adverse to the prosecution.”* 1. A further concern arises from PW3’s evidence that unnamed police officers identified Lennox and Alfric as persons of interest upon being given the General Declaration Form. None of those officers was identified or called to explain the basis of that prior identification. The prosecution therefore left unanswered the source of the information which caused the police to single out the two Appellants before the search commenced. 2. As regards Alfric, PW3 testified that the search was conducted by a multidisciplinary team, some members of which were in civilian clothes. During cross-examination, he stated: **“we were a team you could not identify who is who and who is doing what.”** 1. PW6 similarly stated: **“I do not know who made the recovery for Alfric. I cannot tell when his bag was recovered.”** 1. This evidence was difficult to reconcile with PW13’s testimony that he had tasked PW6 to deal with Alfric. PW13 stated: **“I tasked PC Mugambi (PW 6) to deal with the second accused. Our officers Mugambi and Omumia (PW 14) did those markings.”** 1. PW14 was equally unable to identify who recovered or marked the exhibits, stating: **“I do not know who marked your bag... the substances were marked in the plane but I do not remember who marked them.”** 1. These were not minor discrepancies. They went to the identity of the officer who searched Alfric, recovered the narcotics and marked the exhibits. The prosecution consequently failed to establish a clear and continuous chain of custody from the alleged recovery in the aircraft. The uncertainty was particularly material because the defence challenged the integrity and identification of the exhibits. 2. Kenneth’s case stands on a different footing. The prosecution did not allege that narcotic drugs were recovered from his person or luggage. His arrest was based on the allegation that he had assisted Lennox and Alfric to convey the narcotics into the aircraft. PW3 testified that Kenneth was arrested at Bay 16 and that a search of motor vehicle registration number AV 423 yielded an empty bag resembling Lennox’s. No narcotic drug was recovered from Kenneth. 3. Kenneth’s evidence that he had no luggage when he checked into the airport was not challenged. The prosecution nevertheless sought to connect him to the narcotics principally through CCTV evidence and the alleged association between him and Lennox and Alfric. No call data, messages, fingerprints or other forensic evidence was produced to establish such a connection. 4. The trial Court also relied substantially on the CCTV footage analysed by PW12. PW12 extracted and analysed 69 clips from 11 cameras. His report referred to “a gentleman” boarding and alighting from a pick-up vehicle and described the movements of the vehicle within the airport. Significantly, PW12 stated in cross-examination that he did not know the Appellants and could not identify them from the footage. 5. Although PW1 and PW7 knew Lennox, neither was taken through the CCTV footage to identify him. No witness familiar with Kenneth or Alfric identified either of them in the recordings. The footage was therefore not self-identifying. The prosecution was required to establish the identity of the persons depicted through cogent evidence or other reliable evidence connecting them to the Appellants. 6. The trial Court nevertheless concluded that the footage showed Kenneth arriving at the airport, picking Lennox and subsequently Alfric, and inferred that Kenneth facilitated the transportation of the narcotics. Those findings were not shown to have been made from any witness testimony identifying the persons depicted. The judgment did not sufficiently identify the particular features in the footage upon which the identification was based. 7. The caution applicable to visual identification is well established. In **R v Turnbull [1976] 3 All ER 549, Lord Widgery C.J.** observed: **“***Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”* 1. Likewise, in **Wamunga v Republic [1989] KLR 424,** the Court of Appeal held that identification or recognition evidence must be examined with the greatest care and the Court must be satisfied that the circumstances were favourable and free from the possibility of error. 2. Although the present case concerns CCTV footage rather than eyewitness identification, the underlying principle remains applicable. Identity was a fact in issue and had to be proved by the prosecution. In **R v Nikolovski [1996] 3 SCR 1197,** the Supreme Court of Canada recognised that a sufficiently clear video recording may constitute strong evidence, but emphasised that the ultimate issue remains whether the accused is the person depicted. That issue must be determined upon consideration of all the evidence. 3. In the present case, the prosecution did not adduce independent evidence identifying the persons captured in the CCTV footage as the Appellants. Neither did it demonstrate that any person was captured carrying the backpack into the aircraft. The footage therefore did not establish who placed the backpack in the aircraft, when it was placed there, or who subsequently exercised possession over it. 4. The prosecution’s case against Kenneth was thus founded substantially on inference and suspicion. The fact that he was allegedly seen in the company of Lennox and Alfric, without more, did not establish that he knew about the narcotics or participated in their conveyance. Suspicion, however strong, cannot substitute proof beyond reasonable doubt. 5. Equally, the prosecution did not establish that Alfric’s alleged possession was proved through a reliable recovery. The failure to identify the officer who recovered the narcotics from his suitcase, coupled with the contradictory evidence of PW6, PW13 and PW14 concerning the recovery and marking, materially weakened the prosecution case. The absence of a contemporaneous inventory and the subsequent labelling of the exhibits further compounded the evidential deficiencies. 6. Having re-evaluated the evidence, I find that the prosecution failed to establish an unbroken evidential link between the narcotics and each Appellant. In Lennox’s case, the disputed ownership of the backpack, his absence from the place of recovery, the absence of an inventory, the delayed photographing and labelling of the exhibits, and the failure to call material witnesses created reasonable doubt as to possession. In Alfric’s case, the material contradictions concerning the recovery and marking of the narcotics rendered the chain of custody unreliable. In Kenneth’s case, no narcotics were recovered from him and the alleged connection to the transportation of the drugs rested principally on inconclusive CCTV evidence and inference. 7. The prosecution was required to prove beyond reasonable doubt that each Appellant participated in conveying the narcotic drugs from one place to another. The evidence did not exclude reasonable alternative explanations as to how the narcotics came to be inside the aircraft or how the bags containing them came to be associated with the Appellants. The gaps in the prosecution case could not properly be filled by speculation or assumptions. 8. I therefore find that the prosecution failed to prove the offence of trafficking by conveying against the Appellants beyond reasonable doubt. The convictions by the trial court were consequently unsafe. 9. In the premises, the consolidated appeal is hereby allowed. The convictions against the three appellants are hereby quashed and the sentences imposed by the trial court set aside. The appellants are set at liberty unless otherwise lawfully held. Orders accordingly. **Judgment dated and delivered virtually this 25th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**