[2017] KEHC 2321 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 2 OF 2017

GEOFFREY KARIUKI MACHIRA.......................APPELLANT

VERSUS

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

(Being an appeal from the original conviction and sentence in Nanyuki Chief Magistrate’s Court Criminal Case No. 1036 of 2015 by Hon. E. Ngigi Senior Resident Magistrate on 13th March 2017)

JUDGMENT

1. GEOFFREY KARIUKI MACHIRA (the appellant) was convicted before the Nanyuki Chief Magistrate’s Court of the offence of being in possession of narcotic drug contrary to section 3(1)(a) as read with section 3(2)(a) of the Narcotic and Psychotropic substance (Control) Act No. 4 of 1994(hereinafter referred to as the Act). On being convicted the appellant was sentenced to 3 years imprisonment. He has filed this appeal against that conviction and sentence.

2. This court being the first appellant court is required to analyse the trial court’s evidence and come up with its own finding bearing in mind that this court has not seen or heard witnesses who testified. See the case OKENO –V- REPUBLIC (1972) EA 32.

3. On 17th September 2015 P.C. Timothy Simiyu P.C. Charles Rono, Corporal Wako the District Officer Maranga and the Chief, following information they had received, went to the appellant’s house and knocked at his door. When the appellant saw the police officers outside his door he tried to ran away but was apprehended. The officer conducted a search of his house and found 67 rolls of cannabis, cannabis leave/powder. The appellant was arrested and charged with the offence of possession of that narcotic.

4. PATRICK OCHIENG (PW 3) a government chemist after analysing the seized narcotic established that the same were cannabis. He produced his report in that regard before the trial court.

5. The appellant in his unsworn statement stated that the police officers recovered from him tobacco (kiraiko) and that the charges before court were framed up against him.

6. In this appeal the appellant raised 4 grounds of appeal.

7. On the first ground the appellant submitted that the prosecution did not prove its case to the required standard. To support that ground Learned Counsel Mr. Chweya for the appellant submitted that the prosecution’s evidence was at variance with the charge sheet.

8. The particulars of the charge against the appellant were as follows:-

“Geoffrey Kariuki Machira:On 17th September 2015 at Mukuri area in Laikipia County in the Republic of Kenya was unlawfully found with sixty seven (67) rolls and 500 grams of cannabis sativa which was not medically prepared with a street value of Kenya shillings 2000/= in contravention of the said Act.”

9. Learned Counsel Mr. Chweya on behalf of the appellant submitted that the prosecution’s witnesses while testifying gave evidence of varying quantity of narcotics which were recovered from the appellant. Learned counsel referred to the evidence of P.C. Simiyu who counsel stated referred to one roll of bhang, two polythene papers containing bhang sees and bhang powder. Counsel also referred to the evidence of P.C. Rono who states that 67 rolls of bhang, bhang seeds and bhang leaves. He also referred to the evidence of Corporal Wako who said 67 rolls of bhang were recovered, bhang seeds and crushed powder.

10. Learned Counsel further submitted that whereas the particulars of the charge referred to the appellant possessing cannabis sativa, the prosecution witnesses referred to him possessing bhang. Learned counsel referred to the First Schedule of the Act and stated that there is no narcotic listed thereof which is referred to as bhang.

11. There are two issues that arise from the above submissions. In respect to evidence of P. C. Simiyu I wish to state, for the record, that the learned trial magistrate in his hand written proceedings recorded that P.C. Simiyu said in evidence that sixty seven, and not one, rolls were recovered from the appellant’s home. It does seem that the typist in typing the proceedings mistakenly typed one roll instead of 67 rolls. That answers the appellant’s submissions that prosecution referred to varying quantity of narcotic.

12. The other issue is whether there was variance in the prosecution’s evidence when witnesses referred to the narcotic recovered that is bhang, and not cannabis sativa, as identified in the particulars of the charge.

13. The First Schedule of the Act indeed refers to cannabis as (Indian Hemp) and cannabis resin (Resin of Indian Hemp). Further under the definition Section 2 of the Act, section 2 cannabis is defined as:-

Means the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they be designated.”

14. Bearing the above definitions does the charge fail if the prosecution witnesses referred to bhang. The oxford Dictionary defines bhang as:-

“The leaves and flower top of cannabis, used as a narcotic.”

15. Further this court is entitled under section 59 and 60 of the Evidence Act Cap 80 to take judicial notice that cannabis is referred to in Kenyan local dialect as bhang.

16. It therefore follows that the prosecution’s witnesses did not err to refer to the narcotic as bhang because bhang is another name of cannabis sativa.

17. While still submitting on the 1st ground learned counsel Mr. Chweya argued that the prosecution had failed to prove possession by the appellant of the recovered cannabis.

18. Possession is defined in section 2 of the Penal Code as:-

(a) “Being in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself of any other person;”

The Black’s Law Dictionary defines possession as:-

“The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.”

19. All the prosecution witness who went and recovered the narcotics from the appellant said that they went to that home because of information given to them that the appellant was dealing with narcotics in his house. When the police officers knocked the door the appellant opened it and wanted to run away when he realised they were police officers. This attempt to run is, in itself, indicative of a guilty mind. When that evidence was tendered by P.C. Simiyu, P.C. Rono and Corporal Wako the appellant declined to cross examine them. It follows that the prosecution’s evidence on the recovery of narcotic bhang at the appellant’s home went unchallenged. The appellant even in his unsworn defence did not deny that the police officers went to his house. The prosecution, with that in mind, proved possession by the appellant of the recovered narcotics. They were recovered in his house and there was no contrary evidence.

20. In a further submission under the first ground it was argued that the narcotics was not submitted for testing as required under section 74 A of the Act.

21. Section 74 A provides a strict regime to be followed when narcotic drugs are seized. Section 74A(1) provides that the seized narcotic drug intended to be used in evidence the police or medical officer should be weighed and take a sample “in the present of, where practicable” of the person intended to be charged, designated analyst, the advocate (if any) presenting the accused or analyst (if any) appointed by the accused. After the sample is analysed the sample is returned to the authorised police officer together with certificate certifying the same to be narcotic drug. Section 74 A (4) provides that once the certificate is produced certifying the sample to be narcotic drug the narcotic drug the narcotic shall be destroyed. The authorized police officer is required to produce the sample and the analyst certificate at the trial.

22. Learned Counsel Mr. Chweya submitted that section 74 A was not complied at the appellant’s trial and that accordingly the trial court should not have received the analyst certificate.

23. It is correct that prosecution did not follow the laid out procedure of removing the sample of the narcotic and did not have the narcotic drug destroyed after analysis of the sample. The trial court did however at the conclusion of the trial order its destruction. It is important to state that the appellant did not, at his trial raise that issue of non compliance of section 74 A. More importantly however is that the section provides that where practicable the samples are to be removed in the presence of police, medical officer, the suspect and or his advocate if one is appointed. In all probability it was not practicable for the removal of the sample as provided under section 74 A, this supposition is based on the fact that during the trial the trial court was requested to adjourn the case because the analyst who was due to submit his report had attended court in Mombasa. If that analyst was the same one analysing samples from Mombasa as well as Laikipia County it would not have been practicable for the sample of narcotic found with the appellant to be seized and sampled as provided under section 74 A of the Act. No wonder that the whole haul of the narcotic recovered from the appellant was taken to the analyst for analysis. The exhibit memo from the police and the report of Government analyst show that the whole haul of the narcotic drugs recovered from the appellant’s home were forwarded for analysis and were returned to the police once the analysis was conducted and a report prepare. It needs to be said that it is obviously an error in the proceedings to indicate that the analyst said in evidence that he received 97 rolls of bhang when indeed his report reflects that he received 67 rolls of bhang. I find that the appellant did not suffer prejudice when the witness said the rolls were 97 and not 67. Accordingly applying section 382 of the Criminal Procedure Act I am satisfied that that irregularity did not imperil the appellant. See the SAMUEL FODO GONA –V- REPUBLIC Criminal App. 119 of 2009(MALINDI).

24. Following the above findings the first ground of appeal is not meritious.

25. On the second ground of appeal the Learned Counsel submitted that the trial court rejected the appellant’s defence because it was unsworn.

26. The following is what the trial magistrate stated in his considered judgement:-

“ I now move to the contested issue of the accused possession. PW 1 and PW 2 were both very categorical that they had recovered this exhibits inside the accused (appellant’s) house. However the accused says he was merely caught with a rolled tobacco. The court notes that the evidence of both PW 1 and PW 2 corroborated well and was sworn. The accused denial was unsworn and uncorroborated and could not thus be relied upon to rebut the evidence offered by the prosecution.”

27. As will be seen from the above the trial court did not reject the appellant’s defence because it was unsworn but rather because faced with the sworn evidence of police officer which evidence corroborated each other the defence was for rejection. The issue of unsworn evidence was discussed in the case REUBEN MULATIA –V- REPUBLIC (2017) eKLRwhere Justice J. Kamau referring to the case MAY -V- REPUBLIC (1981) KLR quoted the following from that case:-

“An unsworn statement ....... potential value is persuasive rather than evidential.”

Indeed the appellant unsworn evidence was of no probative value and the learned trial magistrate did not err to reject it.

28. I will consider first the fourth ground of appeal because sequentially it ought to be considered before the 3rd ground.

29. In the fourth ground the appellant submitted that the trial court failed to properly record the appellant’s cross examination of the prosecution’s witnesses. It was not clear what learned counsel meant when he said the trial court failed to properly record cross examination. The appellant as stated before failed to cross examine all the prosecution’s witnesses except one. When PW 1, P.C. Simiyu testified the appellant stated in Swahili thus when invited to cross examine:-

“I do not have a question to him.”

The appellant on being invited to cross examine P.C. Rono the trial court recorded:-

“Nil”

When the government chemist testified the trial court recorded the following as the statement of the appellant:-

“I have no question to him.”

The appellant only asked the investigation officer a question which elicited the following response:-

“You (the appellant) were brought with another suspect who had a children case.”

30. There is no error shown as being committed by the trial court in recording appellant’s response to a request to cross examine witnesses and accordingly the fourth ground is rejected.

31. The third ground of appeal was that the trial court, in sentencing the appellant, failed to consider his mitigation.

32. The trial court in pronouncing sentence of the appellant stated:-

“The court has considered the accused person mitigation and in particular that he has dependants. The court also notes that he is a first offender. On the other hand the court has paid regard to the aggravating circumstances of the case. In particular the bhang material found in possession of the accused shall served 3 (three) years imprisonment.”

33. It is clear from the above that not only did the learned trial magistrate consider the appellant’s mitigation but also gave his rationale for the sentence of 3 years imprisonment. In the case THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTION) –V- DAVID FLYNN [2015] IECA 290 the court emphasizing the need to support a sentence with reason and it stated thus:-

“......... we have sought to commend trial judges that they explain the rationale for their sentence in ...... structured way, not least because a sentence is much more likely to be upheld if the rationale behind it is properly explained. Equally if this court when asked to review a sentence cannot readily discern the trial judge’s rationale or how he or she ended up where they did having regard to accepted principles proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case, it may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good but unspoken reason for not imposing the sentence in question.

34. In this case the learned trial magistrate gave reason and rationale for the sentence of 3 years imprisonment. Under section 3(2)(a) the maximum sentence is 10 years imprisonment. The trial court, for reasons set out in the judgment and reproduced above, sentence the appellant to 3 years imprisonment.

35. The prosecution in this court’s view, adduced evidence that proved the charge against the appellant beyond reasonable doubt. That is the standard of proof in criminal trials. The criminal standard of proof is not beyond a show of doubt, as suggested by the appellant though the challenge he mounted against the trial court’s finding. The standard of proof was stated to be beyond reasonable doubt in court of appeal decision in the case STEPHEN NGULI MULILI V REPUBLIC [2014]eKLRwhere it was stated:-

“The standard of proof required is “proof beyond reasonable doubt.” In reference to this Lord Denning in MILLER V MINISTRY OF PENSION [1947] 2 ALL ER 372 stated:-

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

36. It must now be clear that the appellant’s appeal is devoid of merit. Accordingly appellant’s appeal against conviction and sentence is dismissed. The trial court’s conviction is upheld and the sentence is confirmed.

DATED and DELIVERED at NANYUKI this 8th day of NOVEMBER 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant: Geoffrey Kariuki Machira.........................

For appellant:...............................................................

For the State: …...........................................................

Language: ...................................................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE