[2023] KEHC 26116 (KLR)

Dieter v Republic (Criminal Appeal 6 of 2023) [2023] KEHC 26116 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26116 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 6 of 2023

DR Kavedza, J

December 1, 2023

Between

Rommeswinkel Dieter

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. L.O Onyina (C.M) at JKIA Chief Magistrate’s Court Criminal case no. E038 of 2020 Republic vs Rommeswinkel Dieter)

Judgment

1. The applicant was charged and after a full trial convicted for the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drug and Psychotropic Substances (Control) Act No. 4 of 1994. He was sentenced to pay a fine of Kshs. 20 million in default to serve 1 year imprisonment. In addition, he was sentenced to serve 20 years imprisonment.

2. Being aggrieved, he filed an appeal challenging his conviction and sentence. He complained that his rights to a fair trial were denied. He challenged the totality of the prosecution’s evidence against which he was convicted. He also argued that the sentence meted out was harsh and excessive.

3. 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 v Republic [1973] EA 32).

4. The prosecution called eight (8) witnesses in support of their case. PC James Nyamosi,(PW1) was on duty at the anti-narcotics unit in JKIA when he received a call on 14/8/2020 at around 2030 hours. The call, from Kenya Airports Authority security, reported a person intending to travel from Kenya to Frankfurt, Brussels, and back to Kenya, was held at the screening area due to suspicions about the contents of his suitcase. PW 1 immediately went to terminal IC and found the individual, the appellant herein detained. A primary search revealed a suspicious package at the bottom of the appellant’s suitcase, wrapped in black polythene paper, containing a creamish substance suspected to be narcotics.

5. Subsequent searches were conducted by PC Seurey and Inspector Kamuren (PW 2). PC Seurey prepared an inventory, including the creamish substances, acknowledged by the appellant’s signature. The identified packages were secured in evidence bags marked "RD2(a)" to "RD2(d)" (exh. 3(a) to 3(d)). PW 2 took custody of the suspected narcotics for weighing and sampling, and the appellant was escorted to the JKIA police station and booked in. The substances retrieved during the search were initially in one package of black polythene paper and were later separated into four packages for weighing purposes.

6. PW2, Inspector Daniel Kamuren, testified that he was part of the anti-narcotics unit at JKIA during the relevant period. On 14/8/2020, around midnight, he received a call from PW 1, informing him of the arrest of a passenger with suspected narcotics in his luggage. Upon arrival at the office, he found a black suitcase on the table with a false bottom containing a black polythene package marked RD2 cut open by PW 1, revealing creamish powdery substances. Due to the night-time, they stored the seized items in their store.

7. On 15/8/2020, PC Seurey informed PW2 to proceed to the airport for a weighing exercise. Upon arrival, he joined PC Seurey, PC Ogutu, Derrick Kiprono (Crime Scene Investigation Officer), and Catherine Murambi (government analyst). PC Ogutu brought the appellant to the JKIA police station, while PW2 retrieved the black suitcase with the intercepted substance from the store. He then conducted the weighing process, using four empty packages and a scale. The contents of the package were emptied into four smaller packages marked as "RD2(a)," "RD2(b)," "RD2(c)," and "RD2(d)." The total net weight was 2782. 3 grams. During the process, Derrick Kiprono took photographs, and everyone present, including the appellant, signed the weighing certificate. PW2 produced the Certificate of Weighing and a Notice of Seizure for the creamish substance and black traveler's bag, which was served to the appellant and produced in court.

8. PW3, Oscar Andolo Vuhasio, a security guard at Kenya Airports Authority, testified on 14/8/2020, noticing a suspicious black bag on the X-ray machine at terminal IC around 8:15 pm. Despite the owner's claim of clothes only, a physical search revealed no illicit substances. Rescreening showed a systematic arrangement, leading to the discovery of a false bottom. PW 3 informed his supervisor, Hamad, who alerted duty officer Mohamed. Security agents, including Mohamed, escorted the passenger and bag to the office. PW 3 identified the passport number as CCX0621FO and demonstrated the bag's false bottom with black tape in court.

9. PW4, Chief Inspector Elizabeth Lumumba, a police officer in the anti-narcotics unit, testified that on 16/8/2020, she provided the value of a narcotic substance weighing 2782. 3 grams, as requested by PC Hillary Seurey. The market value was Ksh. 8,346,900, calculated at Ksh 3,000 per gram. She presented the Certificate of Valuation (prosecution exhibit 7), prepared on 16/9/2020.

10. PW5, Corporal Derricks Kiprono from the Crime Scene Investigation at DCI headquarters, testified that, in response to Inspector Daniel Kamuren's request, he captured photographs depicting the bag, its contents, and the weighing and sampling processes. He also presented a certificate related to the photographs. He affirmed witnessing Inspector Kamuren's Certificate of Weighing dated 15/8/2020 during cross-examination.

11. PW6, Catherine Sera Murambi, a government analyst, testified that on 15/8/2020, she conducted a sampling exercise at JKIA on suspected narcotic drugs, witnessing the weighing and finding diacetylmorphine (heroin) in the creamish powder. She collected samples and Officer Hillary Seurey submitted them to the government chemist. Analyzing on 28/8/2020, she determined a 39. 5% purity of diacetylmorphine, noting a 60% filler material with damaging effects. Marking exhibits as Q67/2020, she produced a report on 15/9/2020, including the Certificate of Sampling and the Report of Government Analyst.

12. PW7, Chief Inspector Samson Ogutu from the Forensic Imaging and Acoustic Unit at the DCI headquarters, testified that his role, appointed by the Director of Public Prosecutions, involves processing, analyzing, and certifying photographic and electronic recordings in line with the Evidence Act. On 29/9/2020, he received an exhibit memo from the anti-narcotics unit at JKIA, along with two flash drives. Conducting playback tests on five CCTV video footage files, he confirmed their integrity and produced them in court. PW 7 positively placed the appellant at the scene from screening to arrest, describing the video footage of the appellant’s arrival, bag placement on the screening machine, and subsequent actions until the arrest. He produced the certificate in court.

13. PW8, Police Constable Hillary Seurey, the investigating officer, provided a comprehensive account of the events and his investigative procedures, ultimately leading to the charges against the appellant. He presented the inventory, prepared on 15/8/2020, detailing the custody of seized substances, along with the Notice of Intention to Tender Records in Evidence, marked as prosecution exhibits 30, 31, and 32. During his testimony, he introduced several items recovered from the appellant person as evidence.

14. After the close of the prosecution’s case, the appellant was found to have a case to answer and was put on his defence. He gave sworn evidence and told the court that he is a 63-year-old retiree with an extensive and reputable career in a senior banking role. He conveyed astonishment at the abrupt accusation of drug trafficking. Having undergone heart surgery in 2011, he underscored his preference for a calm environment and the necessity of various medications during his detention. He professed his innocence, contending that he was framed by the person who gifted him the suitcase, failing to reveal its true contents. He drew attention to a letter from the German Minister of Justice dated 12/11/2021, attesting to his clean record, submitted as defense

Analysis and determination. 15. In his written submissions, the appellant submitted that his right to a fair trial was violated under the constitution. He contended that he was denied the opportunity to mitigate and was also not afforded an interpreter. I have perused the entire record, from the time the appellant took plea to the conclusion of the case, the proceedings were conducted in the English language. At no point did the appellant raise the issue that he was not conversant with the language. He cross-examined witnesses using English and as such the ground raised is an afterthought and therefore fails.

16. The appellant challenged the totality of the prosecution’s evidence against which he was convicted. He argued that the exhibits relied on by the prosecution failed the authenticity test. In addition, the investigating officer's chain of custody log produced was not adequate as the link between the narcotic substances and himself was never established.

17. This court has re-evaluated the evidence adduced before the trial court, the Appellant’s grounds of appeal as well as the rival parties’ submission. Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act provides as follows;“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 one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;”

18. The term trafficking is defined in Section 2 of the Act as:“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…”

19. In Gabriel Ojiambo Nambesi vs 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.”

20. In this particular case, the prosecution contended that the appellant was involved in the trafficking of a narcotic substance. PW3, a security guard, noticed the anomaly during the screening of the appellant’s luggage. PC James Nyamosi (PW1) received a call on 14/8/2020 about a suspicious traveler at JKIA. Nyamosi found the appellant with a suitcase containing a creamish substance suspected to be narcotics. PC Seurey and Inspector Kamuren conducted subsequent searches, leading to the weighing and sampling of the substances. PW4, Chief Inspector Lumumba, provided the valuation of the heroin. PW5, Corporal Kiprono, captured photographic evidence. PW6, Analyst Murambi, conducted sampling and identified diacetylmorphine in the substance. PW7, Inspector Ogutu, confirmed the integrity of CCTV footage placing the appellant at the scene. PW8, Investigator Seurey, detailed the events, presented an inventory, and introduced recovered items as evidence.

21. With respect to the chain of custody, the substances recovered from the appellant were well-documented through the testimonies of various witnesses. PW2 took custody of the suspected narcotics for weighing and sampling. PW5, Corporal Derrick Kiprono, captured photographic evidence, confirming the integrity of the weighing certificate during cross-examination. PW7, Chief Inspector Samson Ogutu, confirmed the integrity of CCTV footage placing the appellant at the scene. Finally, PW8, Police Constable Hillary Seurey, the investigating officer, detailed the custody of seized substances through the inventory prepared on 15/8/2020, and introduced the Notice of Intention to Tender Records in Evidence, along with several items recovered from the appellant as evidence. This sequence of testimonies establishes a clear and continuous chain of custody for the substances recovered from the appellant's possession.

22. The chain of custody of the exhibits was clearly explained by the prosecution witnesses. It is worth noting that the appellant never raised this issue with the prosecution witnesses during cross examination.

23. On whether the substance recovered was a narcotic drug, PW6, a government analyst testified that she conducted a preliminary test of the substance recovered from the appellant. The test confirmed that the substance contained heroin. She conducted a sampling exercise and determined the purity of diacetylmorphine in the creamish powder. The prosecution adduced evidence that established that the substance found in the appellant’s possession was a narcotic substance within the meaning ascribed to the term by Section 2(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act and the 1st Schedule thereof.

24. In his defence, the appellant maintained his innocence claiming not to be aware of the contents of his luggage. The trial court considered his defence and found it to be baseless. In view of the foregoing, I find that the appellant’s statement in defence lacked credibility and did not dislodge the cogent evidence adduced by the prosecution. In my considered view, the appellant’s defence was properly dismissed by the trial court as an afterthought aimed at exonerating him from the offence.

25. From the evidence of the prosecution witnesses, which was well corroborated, there is no doubt that the appellant had arrived at JKIA and was heading to Brussels through Frankfurt. The passport in his possession was in his name and inside the said passport was a luggage tag of the same serial number as that of the suitcase which he picked as his own. He also voluntarily signed the inventory of the recovered items produced as exhibits. In addition, he did not dispute being the owner of the luggage. His argument that he was not aware of the presence of the substance in his luggage could have been authenticated by the investigators if only the appellant had disclosed the identities of the persons he had been residing with or, closely interacted with, so that further investigations are conducted to exonerate him from the charges.

26. There is no doubt in my mind, as I hereby find, that the appellant was the owner and or the one in control of the suitcase from which the narcotic drugs were recovered. I am further convinced that he intended to convey the said narcotic substances to his destination. The said narcotic drugs were duly weighed and found to be the value of a substance (heroin) weighing 2782. 3 grams, with a market value of Ksh. 8,346,900. All these factors put together convince this court that the prosecution duly discharged its burden herein and proved beyond any reasonable doubt that the appellant trafficked narcotics drugs. I agree with the trial magistrate on this finding.

27. On the sentence, the appellant was convicted and sentenced to serve 20 years imprisonment, in addition to pay a fine of Kshs. 20 million in default to serve 12 months imprisonment. In the sentencing proceedings, the trial magistrate noted that he had considered that the appellant was a first offender. In his mitigation, the appellant had nothing to say. He was therefore sentenced accordingly.

28. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed. In this regard, I find that the sentence meted out was lawful and in accordance with the trial magistrate’s discretion. However, notwithstanding that the magistrate properly exercised his discretion and imposed a lawful sentence, it is my view that the sentence was harsh and excessive considering the advanced age of the appellant.

29. Therefore, the appeal on sentence succeeds. Accordingly, the sentence of 20 years imprisonment is hereby set aside and substituted with a sentence of 10 years imprisonment. The additional sentence of payment of a fine of Ksh. 20 million in default to serve 12 months imprisonment is upheld. The sentences shall run concurrently from the date of arrest which is, 14th August 2020. Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 1ST DAY OF DECEMBER 2023. ________________D. KAVEDZAJUDGEIn the presence of:Mr. Kiragu h/b for Mr. Mutuma for the Respondent.Mr. Michuki for the Appellant.Appellant present on the platform.Joy/ Naomi Court Assistants.