[2022] KEHC 15413 (KLR)

Emodo v Republic (Criminal Appeal E179 of 2021) [2022] KEHC 15413 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15413 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E179 of 2021

TW Cherere, J

November 10, 2022

Between

Emmanuel Emodo

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentencing in Isiolo Criminal Case No. 1151 of 2018 by Hon. E. Ngigi (PM) on 10th November, 2021)

Judgment

1. Emmanuel Emodo (Appellant) was charged with Trafficking in Narcotic Drugs Contrary to Section 4(a) of Narcotic Drugs and Psychotropic Substances Control Act NO. 4 of 1994. The particulars of the charge were that;On the 04th November, 2018 along Marasabit-Isiolo Road at Archer’s Post was found trafficking in Narcotic Drugs namely Cannabis Sativa to wit approximately 7. 5 Kgs which was not in medical preparation form.

Prosecution case 2. On 04th November, 2018, PC Rulwaro and IP Gitau found Appellant and another arrested by their colleagues at a road block in Archer’s Post. He escorted Appellant and another and M/V KBQ 746F from which they were arrested to Archer’s Post Police Station. PC Rukwaro and PC Rotich searched the vehicle and therefrom recovered 11 bundles of some plant material suspected to be cannabis sativa concealed below the rear bumper and inside the door cover of right rear door. The plant material that weighed 7. 5 kgs was examined and confirmed to be cannabis sativa as shown on the analyst’s report in support thereof.

Defence Case 3. In her sworn defence, Appellant stated that he as employed by Samuel Oketch to drive M/V KBQ 746F. He stated on the material date, him and Samuel Okeyo Ochieng had driven that vehicle and that it was after he received it from the said Samuel Okeyo Ochieng that he was arrested and did not know that bhang was stashed in the vehicle.

4. The learned trial magistrate after analyzing the evidence and finding the prosecution case proved convicted and sentenced Appellant to 15 years’ imprisonment.

5. Aggrieved by both the conviction and sentence, Appellant filed a petition of appeal raising 10 grounds which she later collapsed into 5 in her submissions as follows;1. The prosecution case was contradictory2. The sentence was harsh3. The defence was not considered4. The time spent in custody was not considered

Analysis & Determination 6. The Court of Appeal in the case of Gabriel Kamau Njoroge v Republic [1987] eKLR reiterated the duty of the first appellate court as follows: -“….As this Court has constantly explained, it is the duty of the first Appellate Court to remember that the parties to the Court are entitled, as well on the question of fact as on the question of law to demand a decision of the Court of the first Appeal, and as the Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard from the witnesses and to make due allowance in this respect…..”.

7. I have considered the evidence on record, the grounds of appeal and submissions for the Appellant and for the state and deduced the following four issues for determination.

Whether the prosecution case was proved 8. Evidence by PC Rukwaro and IP Gitau testified that both Appellant and Kennedy Bwire were arrested in the motor vehicle from which some plant material was found concealed and on that ground, Appellant was arrested and charged.

9. Whereas Appellant conceded that he was driving the subject motor vehicle at the material time, he stated that he had just received the vehicle from one Samuel Okeyo Ochieng and did not know that bhang was stashed in the vehicle. The officers who recovered the plant material explained that it was indeed concealed below the rear bumper and inside the door cover of right rear door and was not visible until some parts of the vehicle were pulled out.

10. The owner of the vehicle did not testify to explain under what circumstances the vehicle came into possession of Appellant. The said owner would similarly have shed light on whether there was another driver other that the Appellant. In the absence of the evidence by the vehicle owner, Appellant’s defence remains unchallenged.

11. The essential question is not the truth or untruth of the defence but whether, the case for the prosecution was proved beyond reasonable doubt. I have considered the decision by the trial court rejecting the defence and I find that the learned trial magistrate failed to consider the possibility that Appellant did not know that there was cannabis concealed in the vehicle was probable.

12. From the foregoing, I find that the prosecution case was not so strong against Appellant as to leave only a minute possibility in his favour, which can be dismissed as least probable.

13. In the end, I find that the appeal has merit. The conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is ordered that Appellant be set at liberty.

DELIVERED AT MERU THIS 10TH DAY OF NOVEMBER 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAccused - Present in personFor the State - Ms. Mwaniki (PPC)