[2017] KEHC 539 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CRIMINAL APPEAL NO. 22 OF 2017

BETWEEN

FREDRICK OKAL OGOLLA...........................APPELLANT

AND

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

(Being an appeal from original conviction and Sentence of Hon. P. Gichohi, CM, in Homa Bay CM’s Court Criminal Case No.96 of 2015 dated 17/02/2017)

JUDGMENT

1. The appellant had been jointly charged with another for the offence of trafficking in Narcotic Drugs contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic Substances Act No.4 of 1994

2. The appellant FREDRICK OKAL OGOLLA was convicted on a charge of being in possession of cannabis sativa contrary to Section 3 (1) as read with 3 (2) of the Narcotic Drugs and Psychotropic Substance Act No.4 of 1994 and sentenced to serve 18 years imprisonment.

3. The cannabis weighing 3,129. 1 kilograms with a street value of Kshs.15,645,500/= was recovered in motor vehicle registration No.KBL 219 Mitsubishi Canter Lorry. The particulars stated that on the 2nd day of February 2015 along HOMA BAY-KISUMU road, in HOMA BAY district within HOMA BAY county were jointly found trafficking 3,129. 1 kg of Narcotic Drugs (bhang) in a motor vehicle Registration Number KBL 219 A Mitsubishi Canter Lorry with street value of Kshs.15,645,500/= which was not in medical preparation.

4. CIP JACOB DAIDO (PW2) was on patrol within HOMA BAY, in the company of CPL PAUL MUREITHI (PW5) and PC NICHOLAS ODHIAMBO (PW1) and PC (Driver) KARIUKI on 2/02/2015, using motor vehicle Registration GK 641 E Toyota Land Cruiser, when they received information at about 11. 00 a.m. that there was a motor vehicle coming from RODI direction headed towards HOMA BAYand was suspected to be carrying bhang. The motor vehicle had already passed Homa Bay Town and was heading towards Kendu Bay – so police proceeded towards Kendu Bay and upon reaching NYALKINYIshopping centre they saw a white Mitsubishi Canter heading towards Kisumu direction, so they flagged it down and it stopped.

5. CPL MUREITHIapproached the vehicle and asked the conductor who was in the driver’s cabin what they were carrying – to which they answered it was maize being ferried from MIGORIto KISUMU. The officer requested the conductor to alight and open the door to the cargo section. The conductor opened the door on the left side and indeed police saw bags of maize stacked there. However since curiosity never reach killed the cat, CPL MUREITHIasked the conductor to open the rear door of the canter – he complied and all that could be seen were bags of maize stacked to the top. All this time the driver remained at his cabin. However there was a whiff of bhang in the cargo cabin, so CPL MUREITHI climbed into the vehicle while PW1 and the conductor remained on the ground. It is then that he saw other bags stacked further inside which were different from the maize bags. CPL MUREITHI ordered PW1 to detain the conductor as he got suspicious of the contents of the new set of bags.

6. The driver was ordered out of his seat and placed under arrest together with the conductor. PC KARIUKI got into the vehicle and drove it to HOMA BAY police station while CPL MUREITHI drove the police vehicle with the two suspects, PW1 and the OCS.

7. Before the suspects could be booked in, they were taken near the vehicle to witness the off-loading and 60 (sixty) bags had stones of bhang while 4 (four) bags contained rolls of bhang. All the bags had an outer polythene wrapping. The maize bags were 41 (forty one) in number. The persons arrested were the appellant and his then co-accused. All the recovered bags and the vehicle were produced in court as exhibits.

8. This version of events was confirmed by PW2 Chief Inspector JACOB DAIDO (then the OCS HOMA BAYpolice station) and CPL PAUL MUREITHI (PW3) who were in the team that got the information and apprehended the appellant and the offending items.

9. PW2 and PW5 denied suggestions by defence counsel on cross examination that it was police who stacked the drugs into the vehicle. He explained that every bag was weighed to determine its weight and given a serial number.

10. EVANS MWAORA MUIGAI (PW3) the HOMA BAY County Weights and Measures Officer was requested by CPL MUREITHI to go to the police station on 02/02/2015 to weigh the recovered bhang. He used a weighing scale which had a capacity of 150 kilograms to determine the weights of each of the bags. The net weight of the bags ranged between 3 kilograms – 58. 80 kilograms.

11. The recovered substance was sent to the Government Chemist for analysis and RICHARD KIMUTAI LANGAT (PW4) who did the analysis took samples of the recovered material from each bag and established that they were all cannabis which falls under the First Schedule of the Narcotic Drugs and Psychotropic Substances.

12. In his sworn defence, the appellant explained that while drinking liquor in the company of his co-accused at Stage View Bar in Homa Bay, police raided the place to arrest several revellers but everyone else escaped except him and his co-accused who were arrested and charged with the offence. He denied being contracted by anyone to carry goods on the date under reference. He also insisted that he was not inside the Mitsubishi canter referred to, and he only got to see the bhang and the vehicle when he was charged.

13. In her judgment, the trial magistrate had no doubt that police intercepted motor vehicle registration No. KBL 219 A after a tip off that it was ferrying bhang and it had two occupants namely the driver and the conductor.

14. She noted the manner in which the bags were stacked behind the maize bags and stated:-

“No doubt the person who loaded the said vehicle intended to dupe anyone who intended to search the same into believing that it had carried only bags of maize.”

15. The trial magistrate considered the appellant’s alibi defence that they were not inside the said motor vehicle on the date in question, but inside a bar, and pointed out that the alibi defence was an afterthought which was never put to any of the police officers on cross examination. She rejected the suggestion by defence that the evidence was fabricated, saying there was nothing suggested as to why the appellants who were not known to the police officers before should be framed up. She was persuaded that the appellant was one of the persons arrested with the motor vehicle and the drug.

16. The appellants had been charged with the offence of trafficking in Narcotic Drugs contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic Substances actand found that the charge as drawn did not specifically indicate what conduct of the appellants constituted trafficking. The trial magistrate pointed out that the evidence showed the drug was being transported in the said vehicle but the words were not used in the particulars of the charge, so the charge of trafficking could not stand. She held as follows:-

“I am satisfied that the prosecution …. has proved … the offence of possession of cannabis.”

and thus convicted them for the offence provided under Section 3 (2)of the Act.

17. The appellant has challenged these findings on grounds that the trial magistrate erred in finding that he was in possession of the drug and associating him with the motor vehicle which he now discovered it belonged to one PATEL CHANDRALCANTand KCB. He also lamented that the trial magistrate failed to appreciate that he was compelled to sign the inventory unknowingly.

18. He relied on written submissions maintaining that the charge sheet was defective, and he was even convicted on a charge he did not plead to.

19. It was also his contention that the trial magistrate did not properly consider his defence.

20. In opposing the appeal, MR. OLUOCH on behalf of the State argued that the court was very clear regarding the charge preferred in the charge sheet and indeed in recognition of that defect she invoked the provisions of Section 179 Criminal Procedure Codeand convicted him on a lesser charge of being in possession of cannabis sativa.

21. As to the ownership of the motor vehicle, MR. OLUOCH submitted that the key ingredient was who was in possession of the motor vehicle at the time it was apprehended. He also drew to the court’s attention the conduct of the appellant, saying the manner in which the drug was camouflaged using bags of maize as a front, clearly showed he had a guilty mind.

22. I am aware of the decision in MADELINE AKOTH BARASA & ANOTHER –VS- R. CRIMINAL APPEAL NO.193 OF 2005 [2007] e KLRwhich held that the charge sheet must specify clearly the conduct of an accused person which constitutes trafficking.

23. The trial magistrate was indeed alive to this decision and pointed out the deficit in the charge sheet. Yet the evidence presented at the trial did disclose an offence although not the one he was charged with. Should the court then have allowed him to go scot free? Certainly not, and indeed the Criminal Procedure Code contemplated such a scenario hence the provision used by the trial magistrate under section 179 (2) of the Criminal Procedure Code which provides that:-

“(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence though he was not charged with it.”

24. I need not say more on that, I find no fault in the trial magistrate’s decision.

25. As regards ownership of the motor vehicle, apart from the fact that this is now new evidence which is not even supported by any document, MR. OLUOCH clearly points out that the key ingredient was – who was in possession of the motor vehicle at the time it was apprehended – especially in regard to the offence the appellant was convicted. The answer is clear – it was the driver and the conductor.

26. The upshot is that the conviction was safe and is upheld. The sentence was legal and I confirm it. The appeal is dismissed.

Delivered and dated this 9th day of October, 2017 at Homa Bay

H.A. OMONDI

JUDGE