[2000] KEHC 525 (KLR)

[2000] KEHC 525 (KLR)

The High Court found that the offence of trafficking in narcotic drugs under section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act requires proof of knowledge (mens rea) on the part of the accused. The evidence did not establish that the eight crew members had actual knowledge or deliberately shut their eyes to the nature of the cargo; they were merely performing their duties as crew under the direction of the captains and owner. The trial magistrate erred in presuming knowledge without sufficient evidence and in failing to distinguish between actual and constructive knowledge. However, the two captains, Ali bin Ali and Shee Obo Mohamed, were found to have...

Citation
[2000] KEHC 525 (KLR)
Parties
Appellant: Hemedi Ameri; Appellant: Mohamed Ali; Appellant: Ali bin Ali; Appellant: Omar Hemed; Appellant: Shee Obo Mohamed; Appellant: Bwana Bunu; Appellant: Mohammed Kali Fumo; Appellant: Omar Salim Katambo; Appellant: Mohamed Liwali Ali; Appellant: Omar Hamisi; Respondent: Republic
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
21 July 2000
Case Number
Criminal Appeal 48-57 of 1997
Procedural Posture
Criminal Appeal / Judgment
Outcome
Appeals of eight crew members allowed; convictions quashed and sentences set aside. Convictions and sentences of two captains upheld.
Legal Topics
Drug Trafficking, Mens Rea, Criminal Liability of Employees, Strict Liability, Evidentiary Burden, Sentencing Principles
Source Language
English
Criminal Law Drug Trafficking Mens Rea Criminal Liability of Employees Strict Liability Evidentiary Burden Sentencing Principles

Case Brief

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Parties

Hemedi Ameri

Appellant

Mohamed Ali

Appellant

Ali bin Ali

Appellant

Omar Hemed

Appellant

Shee Obo Mohamed

Appellant

Bwana Bunu

Appellant

Mohammed Kali Fumo

Appellant

Omar Salim Katambo

Appellant

Mohamed Liwali Ali

Appellant

Omar Hamisi

Appellant

Republic

Respondent

Procedural Posture

Criminal Appeal / Judgment

Legal Issues

  1. 1 Whether the appellants had the requisite knowledge (mens rea) to be convicted of trafficking in narcotic drugs under section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994.
  2. 2 Whether the conviction of the crew members, as opposed to the captains, was supported by evidence of knowledge or participation in the offence.
  3. 3 Whether the trial magistrate erred in law and fact in convicting and sentencing the appellants based on the evidence adduced.

Ratio Decidendi

The High Court found that the offence of trafficking in narcotic drugs under section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act requires proof of knowledge (mens rea) on the part of the accused. The evidence did not establish that the eight crew members had actual knowledge or deliberately shut their eyes to the nature of the cargo; they were merely performing their duties as crew under the direction of the captains and owner. The trial magistrate erred in presuming knowledge without sufficient evidence and in failing to distinguish between actual and constructive knowledge. However, the two captains, Ali bin Ali and Shee Obo Mohamed, were found to have...

Court Disposition

Appeals of eight crew members allowed; convictions quashed and sentences set aside. Convictions and sentences of two captains upheld.

Orders

  • Convictions and sentences of Hemedi Ameri, Mohamed Ali, Omar Hemed, Bwana Bunu, Mohamed Kali Fumo, Omar Salim Katambo, Mohamed Liwali Ali, and Omar Hamisi quashed; they are to be set free unless otherwise lawfully held.
  • Convictions and sentences of Ali bin Ali and Shee Obo Mohamed confirmed.