[2022] KEHC 1474 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO. 6 OF 2019

(Being an appeal against the conviction and sentence of Hon. O.

Momanyi Senior Resident Magistrate in the Chief Magistrates

Court at Nyahururu Criminal Case No.1813 of 2016)

FLORENCE MUTHONI GITAU......APPELLANT

VERSUS

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

JUDGEMENT

1. Florence Muthoni Gitau, the Appellant herein was charged with the following offences:

2. Unlawfully being possession of part 1 poison contrary to Section 26(1) as read with Section 26 (2) of the Pharmacy & Poisons Act CAP 244 Laws of Kenya and as amended by the Kenya Gazette Supplement Number 49 (Act No.3) of June 2002. The particulars of the charges were that on the 2nd day of August 2016 at Soilaa Chemist in Charagita Trading Center within Nyandarua County was found to be in possession of part 1 poison to with Dawa Flox Caps, Secnid DS Tabs, Caltrim Susp, Amplico-Dawa Susp, Amplico-Dawa Props, Amoxmark 500, Abgenta Eye/Ear Drops, Amitriptyline Tabs, Dawastin Susp, Eryhrox Susp, Canadil Tabs.

3. Unlawfully carrying on the business of a pharmacy while not registered by the Pharmacy and Poison Board contrary to Section 19(1) as read with Section 19(2) of the Pharmacy and Poison Act CAP 244 Laws of Kenyaand as amended by Kenya Gazette Supplement No. 49 Act No. 3 of June 2002. The particulars of the charges were that on the 2nd day of August 2016 at Charagita Trading Centre within Nyandarua County was found to be carrying on the business of a pharmacy at Soila Chemist while not registered as a pharmacist by the Pharmacy and Poison Board otherwise than in accordance to provision of the Pharmacy and Poisons Act.

4. Carrying on the business of a pharmacist in premises not registered by the Pharmacy and Poisons Board contrary to Section 23 (1) Laws of Kenya as read with Section 23(6) of the Pharmacy and Poisons Act CAP 244 Laws of Kenya and as amended by Kenya Gazette Supplement No 49 Act No 3 of June 2016. The particulars were that on the 2nd day of August 2016, at Charagita Trading Center within Nyandarua County the Accused was found to be carrying on the business of a pharmacist in a premises not registered by the Pharmacy and Poison Board otherwise than in accordance with the provisions of the Pharmacy and Poisons Act.

5. The Appellant was convicted of on all the three counts and sentenced in the following terms:

i. 1st count – Accused to pay a fine of Kshs.15,000/= or 3 months in default

ii. 2nd count – Accused to pay a fine of Kshs.20,000/= or 3 months in default.

iii. 3rd count - Accused to pay a fine of Kshs.15,000/= or 3 months in default.

6. The Appellant, aggrieved by both the conviction and sentence meted out against her by the trial court., appealed and her grounds of appeal as indicated in the petition of appeal include:

i. That the trial magistrate erred in law and fact by convicting the Appellant on insufficient evidence

ii. That the learned trial magistrate erred in law and fact by convicting the Appellant on insufficient evidence.

iii. That the learned trial magistrate erred in law and fact by making a finding that the Appellant was running the business known as Soila Chemist despite evidence to the contrary.

iv. That the learned trial magistrate erred in law and fact by convicting the Appellant despite the evidence presented by prosecution was contradictory.

v. That the learned trial magistrate erred in law and fact by disregarding the defence and not appreciating the evidence by the Appellant.

7. Reasons wherefore he Appellant prayed for orders that the appeal be allowed, that she be acquitted and be refunded the fine paid upon conviction by the trial court.

APPELLANT’S SUBMISSIONS

8. The Appellants submitted that the prosecution failed to meet the well settled standard of proof and the trial court should have made a finding that there was insufficient evidence to convict the Appellant. They argued that when PW1 visited the chemist he was shown licenses which had been issued to Josephine Gichuhi while the other one had been issued to Mr. George Waititu. The Appellant indicated that she was an employee at Soila Chemist (hereinafter referred to as ‘the chemist) and PW1 did admit that the so called part 1 poisons were not subject to any analysis. The Appellant stated that PW2 was operating illegally outside his jurisdiction when he allegedly found the Appellant operating the chemist.

9. The Appellant averred that the prosecution ought to have led evidence proving that the said chemist was registered in the name of the Appellant and without that, the Appellant could have not been charged with being in possession of part 1 poisons, a charge that can only be preferred against the owner of such premises.

10. It was their assertion that the evidence by the prosecution witnesses was neither cogent nor consistent and the court was presented with three different versions of events by three witnesses. PW1 did not see anyone purchase drugs from the Appellant. PW2 indicated that he saw a customer exiting, and PW3 saw someone come and purchase mara moja painkillers. It was their argument that the three witnesses could not have been testifying about the same premises.

11. The Appellant submitted that the defence had submitted their evidence to the tune that the Appellant was not the registered owner of the business and it was not clear why the investigating officer did not deem it necessary to arrest and charge Mr. George Waititu who was identified as the registered owner with the offences that the Appellant was facing. The Appellant was only a mere assistant at the chemist and was required to call the owners anytime anyone wanted to purchase drugs. The Appellant reiterated that the court should take judicial that not all employees in a chemist have to be trained or registered under the Pharmacy and Poisons Board.

12. Reliance was placed on High Court of Kenya at Nakuru Criminal Appeal No. 21 of 2010 Irene Musembi Avedi v Republic & Court of Appeal at Nairobi Criminal Appeal No. 38 of 1997 Ahmed Salim & Another v Republic

13. Defence Submissions were unavailable at the time of drafting this opinion.

ANALYSIS AND DETERMINATION

14. This being the first appellate court, it is mandated to examine afresh the evidence that was adduced before the trial court, evaluate the same and reach its own conclusion.

15. Briefly stated, the prosecution evidence was as follows:

16. PW1, a Pharmaceutical Inspector testified that on 2. 8.2016, in the accompany of his deputy and police officers from Olkalou Police Station came across a chemist known as Soila Chemist in the course of doing inspections in Nyandarua. They entered and introduced themselves to a lady who was selling medicine. They asked her to allow them to do an inspection and requested her to produce the license from the Poisons and Pharmaceutical Board and for a license to show them that she is qualified to hold part 1 poisons. That she did not avail the aforementioned licenses and thus was arrested. That they also seized the part 1 poisons and signed the seizure form alongside the Accused.

17. Upon cross examination PW1 stated that there was only one person in the chemist i.e. the Accused. That if one is employed as a cleaner or a cashier you should not possess the license. He observed that the county business documents are not related to Pharmacy and Poisons Board. He stated that they asked the Accused where the proprietor was and she said she was an employee. Upon re-examination, he reiterated that DMF1 1 was not shown to them and it is a license for Public Health Inspection and does not refer to the Pharmacy Board and DMF1 2 is a single permit for operating business whilst what they were looking for were licenses under Cap 244 Laws of Kenya (Pharmacy and Poisons Act).

18. PW2 testified that on the material day there was one customer exiting the premises when they arrested the Appellants. That they seized some drugs belonging to part 1 poison and recorded the same in the seizure form which the Accused was not compelled to sign. That the Accused was found inside the premises and that they were interested in the qualifications of the person dispensing but they were not given any professional body licenses. On re-examination he clarified that the gazette states that he works within the republic and that he may be moved from station to station and that may not need fresh gazettement.

19. PW3, the investigating officer, testified that they found the Accused operating the chemist and they introduced themselves and requested for the Accused’s qualifications together with business license for the premises which she was unable to produce the same. That part one poisons were seized and she was arrested and charged accordingly. On cross examination he testified that they found the Accused inside the chemist and that somebody came and bought “mara moja” painkillers. Further, he asserted that he did not establish who the owner of the chemist was and that the owner should have applied for the license. He also claimed that they did not force the Accused to sign the seizure form and that there were no licenses in the shop.

20. Upon defence hearing, the Accused testified that she was seated outside the chemist on the material date and that the in charge asked her to all him in case anyone came. That 2 people came in and asked if the owner of the chemist was around but they did not allow her to call him and proceeded to arrest her. That they threatened her to sign some forms. She stated that she did not know if the owners have licenses. She reiterated that she was employed as a cleaner and that she was not the owner of the chemist.

21. DW2 testified that he issued a Nyandarua County Government business permit for the chemist to George Waititu and that the business belongs to him as one cannot apply for a permit to a business that doesn’t belong to him.

22. With regards to count one, Section 26 of the Pharmacy and Poisons Act on the possession of part I poisons provides as follows:

“It shall be lawful for the following persons may be in possession of Part I poisons, but to the extent only and subject to the limitations prescribed by this subsection that is to say—

i. a wholesale dealer licensed under section 27 of this Act, for the purposes of the licence and on the premises so licensed;

ii. an authorized seller of poisons, on premises registered under section 23 of this Act;

iii. a person licensed under section 28 of this Act to sell poisons for mining, agricultural or horticultural purposes, for the purposes of the licence and on premises so licensed;

iv. any person, institution or department, to whom a Part I poison has been lawfully sold in accordance with section 29 of this Act, for the purpose for which such sale was made;

v. any person for whom the poison has been lawfully supplied or dispensed by a duly qualified medical practitioner, dentist, or veterinary surgeon, or by a hospital, dispensary or similar institution under the provisions of section 31 of this Act;

subject to any conditions which may be prescribed, a representative of a person engaged in the business of selling and supplying pharmaceutical goods, for the purpose of giving free samples of such goods, in the course of such business, to persons who may lawfully be in possession of Part I poisons;

vi. the personal representative of any deceased person, or the liquidator, receiver or other person appointed to deal with the property of a bankrupt or of a company which is being wound up compulsorily, or the manager of the estate of a person of unsound mind, in respect of poisons in the possession of the deceased person, bankrupt person, company or person of unsound mind at the time of the death or bankruptcy or the beginning of the winding up or the order appointing the manager, for the purpose of disposing of those poisons, with the written permission of the Board and in accordance with its directions, to a wholesale dealer in poisons licensed under this Act or to an authorized seller of poisons.

(2) Any person who is in possession of a Part I poison otherwise than in accordance with the provisions of this section shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three years or to both such fine and imprisonment.”

23. The prosecution adduced evidence to the tune that the Appellant herein was found in the chemist by the pharmaceutical inspectors and the police officers and upon them requesting for the required operating licences from the Pharmacy and Poisons Board the Appellant she was unable to produce the same. However, she did state that she was an employee and not the owner of the chemist but she was arrested. The part I poisons were also seized from the premises. In her defence, she stated that the chemist was not hers and she was only employed as a cleaner. Evidence was adduced to that fact in form of business permit that showed that the chemist belonged to one George Waititu.

24. It is my view that the trial court overlooked material facts in this case. In this count the Appellant was charged despite stating that she was an employee and therefore not the owner of the business. The premises were evidently not properly licenced by the Pharmacy and Poisons Board but in my view that should have been taken up with the owner. Although PW2 stated that the Appellant was the owner, the investigating officer clearly asserted that he did not establish who the owner of the chemist was and that the owner should have applied for the licenses. PW1 also stated that if one is employed as a cleaner or a cashier you should not possess the licence.

25. It is a fact that PW1 and PW2 were on a lawful course in inspecting outlets dispensing pharmaceutical drugs and that for such a business to operate as a Chemist in Kenya crucial documents and/or licences must be obtained from the Pharmacy and Poisons Board. PW1and PW2 being Pharmaceutical Inspectors from the Board are charged with the duty of issuing licenses and had the requisite knowledge and experience to reasonably interrogate any such documents which were not presented to the in the case herein.

26. Nevertheless, I noted the inconsistencies in the witnesses’ evidence on what the Appellant was found doing in the chemist and I believe it to be true that although she was found inside the chemist, she was not selling or dispensing any drugs at the time the inspectors and police officers arrested her. I am satisfied that the Appellant was an employee at the chemist whether as a cleaner and/or assistant. The question then begs: why didn’t the investigating officer conduct further investigations to establish the owner of the business. The prosecution did not elaborate on the same.

27. Further, the seizure form can be signed by either the owner of an employee and in the circumstances I believe that she signed it as the latter. The learned trial magistrate opined that it was hard to believe that she was employed as cleaner in such a small trading center as she appeared schooled however appearance is not a sufficient determinant of anyone’s nature of employment especially in our country that is plagued with high levels of unemployment.

28. In Irene Musembi Avedi v Republic [2011] eKLR the court held that: -

(1) Occupation of premises or vessel where drugs are found per se cannot constitute possession of the drugs. It must be shown that the Appellant was aware of the existence of the drugs in that house; that she had access to and physical control of them; that she was in a position to deal with them as the owner to the exclusion of strangers. It was incumbent upon the prosecution to prove the ownership or tenancy of the house. Secondly, there was no evidence that the man at large was in fact the husband of the Appellant.

(2) Without evidence of the ownership of the house and in view of the Appellant’s defence that she had only gone to the house the previous night with the owner, the learned trial magistrate ought to have resolved the conflicting evidence in favour of the Appellant.”

29. Accordingly, it is my considered view that the inspection though legally carried out, the prosecution failed gravely by not adduce evidence of the ownership of the chemist or that the Appellant was in the position to operate the chemist and deal with the part I poisons as the owner to the exclusion of strangers. The prosecution failed to meet the standard of proof required in criminal cases which is beyond reasonable doubt. For these reasons, I find that that the conviction by the trial court was not safe.

30. Similarly, for count two and three, having considered the totality of the evidence presented before the trail court, I have applied the aforementioned reasoning and find that as an employee the Appellant was not culpable for the offences charged. The conviction by the trial court was largely based on the understanding that the Appellant carried on the business of pharmacy as a pharmacist however I disagree with the same. There was no evidence to show that the Appellant was the owner of the business premises.

31. Accordingly, I find that the trial court erred in convicting the Appellant on charges that were not proved. It follows that the appeal is successful and is allowed. Thus, court makes the orders that;

(i) The conviction is hereby quashed and the sentence set aside. The fine paid to be reimbursed to the Appellant.

DATED AND SIGNED AT NYAHURURU THIS 10TH DAY OF MARCH, 2022.

......................................

CHARLES KARIUKI

JUDGE