https://new.kenyalaw.org/akn/ke/judgment/keca/2026/927

Eid v Republic (Criminal Appeal E007 of 2024) [2026] KECA 927 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 927 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E007 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Hussein Massoud Eid Appellant and Republic Respondent (An appeal from the judgment and sentence of the High Court of Kenya at Mombasa (G. F. Mugambi, J.) delivered on 17th March, 2023). in Criminal Appeal No.70 of 2019 Criminal Appeal 70 of 2019 ) Judgment 1.This is a second appeal from the Judgment of the High Court of Kenya at Mombasa (G.F. Mugambi, J.) dated 17th March 2023 in Criminal Appeal No. E070 of 2019 in which the learned Judge upheld the Judgment of the Principal Magistrate’s Court at Mombasa (E. M. Kagoni, PM) dated 11th June 2019 in Criminal Case No. 468 of 2018. 2.The Appellant, Hussein Massoud Eid, was charged jointly with 2 others with the offence of trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drug & Psychotropic Substances (Control) Act No. 4 of 1994. 3.The particulars of the offence were that, on 16th May 2018 at Regency Park Hotel in Mombasa town within Mombasa County, the Appellant jointly with others not before court trafficked by storing narcotic drug namely heroin weighing 10.22 Kilograms with a market value of Kshs. 30,066,000, and concealed in the false bottoms of three suit cases in contravention of the provisions of the Act. 4.The facts as presented to the court were that, Stephen Ouma Odipo (PW1), a receptionist at Regency Park Hotel, told the court that, on 15th March 2018 at about 5:00 p.m, he was on duty when a regular customer he knew as Massoud, the Appellant, walked into the hotel carrying 3 bags. As he was a regular customer, he registered him and requested his colleague Hassan Swalleh, PW3, to assist him carry the bags to room 413 in which he was booked. 5.The Appellant proceeded to the room and Stephen remained with his passport number AB733469, which he used to fill in his registration details. The guest checked into the room and, after about five minutes, he came back to the reception and requested to pay for the room, but on realising that he had no Kenyan currency on him, he left. He stated that since his shift had ended, he handed the passport to his colleague Osman Tsofa Nthege and left. Later at about 10:00 p.m, he was called by one Omar and informed that the police had stormed into Room 413 and arrested the Appellant, claiming he had narcotics. 6.On 20th March 2018, police officers came and requested to be granted access to the CCTV footage, which was not done immediately because the technician had travelled to Saudi Arabia. He stated that he did not know whether they later obtained the footage, but he gave them the Appellant’s passport which he had still retained. 7.During cross-examination, he told the court that he did not have the hard copy of the registration details of the Appellant when he booked the room. He also did not have the soft copy of what was generated after he filled in the details of the guest he booked into room 413. He further told the court that the second and the third accused persons were not guests at the hotel. 8.Mwangome Salim, PW2, also an employee of Regency Park Hotel, was on duty on 15th March 2018 at about 5:30pm when the hotel manager, Mr. Hussein requested that he assist the Appellant with his three suitcases. Accompanied by the Appellant, he carried one of the suitcases to room 413 while the other two suitcases were carried by his colleagues, Francis Nyale and Hassan Swalleh, PW3. 9.PW3 confirmed that he took the bag to room 413 where he found the hotel technician, Mr. Salim, checking the electric system and other gadgets. He also stated that another guest whom he could not identify was also in the room. He left the bag in the room. 10.While on night shift on 15th March 2018, Lukas Ochieng Oduor (PW4), a cleaner at the hotel, was requested by a police officer to accompany him to room 413, which he did. Inside the room, he found other people identified as police officers. He saw one open suitcase on the floor containing some brownish powder. The officer requested him to confirm what he had seen and, after he confirmed, he was asked to leave. 11.Nyule Tsofa Nthenge (PW5), a receptionist, was on duty at about 6:30pm on the material day. At about 7:00pm, some police officers entered the hotel accompanied by the 3rd accused whom they enquired as to whether he was a guest at the hotel. After checking, PW5 found that his details were not on the guest register. One of the officers then wrote the name Hussein Massoud on a piece of paper and asked him to check whether they had a guest by that name at the hotel. Upon checking the guest register, he confirmed that they had a guest by that name in room 413; that the guest had checked in, but had not paid for the room. The officers requested him to take them to room 413, and he requested Lukas, one of the room attendants, to show them to the room. At about 1:30am, the officers came down with the Appellant, whom he recognized as their regular guest, and with the 2nd and 3rd accused. One of the officers paid for room 413 and left with the three accused persons. 12.PC Bernard Langat, PW6, attached to the Anti-Terrorism Police Unit (ATPU) Mombasa, was among the officers who conducted a search of Room 413 and witnessed the recovery of three brown polythene bags from the false bottom of each of the suitcases, each containing a brown substance suspected to be narcotics. After conducting the search, an inventory of the seized items was prepared, which he signed as a witness on the same night together with the search certificate. He further stated that, on 7th March 2018 when the recovered substance was weighed in the presence of the Appellant, he was also one of the officers who signed the certificate of weighing. The Appellant did not sign the inventory as he stated that he was unwell. 13.PC Moses Ouma, PW7, of Directorate of Criminal Investigations Transnational Organized Crime was likewise part of the search team that entered into Room 413 in the company of PW6 and other officers. He personally recorded the inventory of the items recovered and confirmed that it was signed by the co-accused persons on the day of seizure, while the Appellant signed it the following day. The delay in obtaining the Appellant’s signature was because he complained of being very sick during the search operation. 14.PW8, the Fleet and Staff Manager at Tahmeed Coach, testified that police officers visited their offices during investigations requesting to inspect the passenger manifests for the relevant journeys; and that his interaction with police related to confirming the passenger details of individuals who travelled by bus on the material dates. PW10, a conductor with Tahmeed Coach, stated that the Appellant boarded the bus in Dar es Salaam and alighted in Mombasa. PW11, the driver and PW12, the conductor of the same Tahmeed bus, corroborated PW10’s testimony, confirming that the appellant indeed travelled from Dar es Salaam to Mombasa on the day in question. 15.Dennis Owino Onyango, PW9, a Government Analyst, received three packages recovered from Room 413 and extracted and tested samples from each package. He produced both his analytical report and the remaining samples to the court. His findings confirmed that the substance contained 35% heroin. 16.CI Jack Achilla, PW13, of Anti-Narcotics Unit was the officer who led the operation. He stated that, upon receiving intelligence information that the Appellant together with two others were involved in narcotics trafficking, he organized and led a team to Room 413 at the Regency Park Hotel where they found the appellant and another accused person. A search of three suitcases found in the room revealed that they had false bottoms that concealed compartments from which they recovered a white cream-coloured powder, which they seized for laboratory testing. Scene of Crime personnel were summoned and photographed the suitcases, the false compartments, and the recovered substances as the search progressed. 17.Joshua Okaalo, PW14, a Drug Enforcement Agency officer attached to the United States Embassy in Kenya, was responsible for valuing the seized narcotics. He prepared and produced the Certificate of Valuation in respect of the heroin recovered in the room. 18.Samuel Kariuki, PW15, a Senior Immigration Officer based at the Department of Immigration in Nairobi, conducted a search through immigration systems using the travel documents belonging to the accused persons. His role was to confirm their nationality, and he produced a certificate reflecting that information. 19.Corporal Francis Mjomba No. 55622, PW16, a police officer attached to the Anti-Narcotics Unit, was the Investigating Officer. On 17th March 2018, he received instructions to proceed to the Port Police Station where he found Dr. Masa, Inspector Achilla (PW13), and other officers, who briefed him on the recovery of narcotics that were confiscated from the accused persons. He largely reiterated the evidence of Inspector Achilla on the discovery of the three suitcases with concealed packages containing narcotics, how the packages were recovered and weighed and the samples taken by the Government Analyst, Dennis Onyango; that he took custody of the exhibits and prepared an Exhibit Memo at the scene, which was produced in court after being sealed and valuation certificates issued in the presence of the Appellant and his co accused. 20.When placed on his defence, the Appellant stated that he is a Madagascar national and that, on the material evening, he was at the Tahmeed bus booking office where he was in the process of purchasing a ticket for a trip to Nairobi. While at the office and conversing with a bus conductor, police officers arrested and took him to a room where he saw the three suitcases for the very first time. He denied ever being at the Regency Park Hotel or in Room 413, asserting instead that his arrest took place while waiting to travel from Mombasa to Nairobi. 21.After hearing both the prosecution and the defence, the trial magistrate convicted the Appellant of the offence of trafficking narcotics and sentenced him to 30 years’ imprisonment with a fine of Kshs. 90,000,000 and in default of which he would serve a jail term of 5 years. 22.The Appellant was dissatisfied with both his conviction and sentence by the subordinate court and preferred an appeal to the High Court, which upheld the conviction, having found that there was overwhelming evidence that the Appellant had control and possession of the narcotics and knowingly trafficked narcotics, and that his defence was a mere denial and unsupported by evidence. 23.On the sentence, the first appellate court observed that punishment under Section 4(a) of the Narcotic Drugs and Psychotropic Substances Act remains discretionary; and that the trial court considered all relevant factors, including the value and quantity of the heroin; that the Appellant could lawfully have been sentenced to life imprisonment with a substantial fine but that, instead, the trial court imposed a lenient sentence. The High Court concluded that the conviction was safe and upheld the sentence. 24.Aggrieved, the Appellant filed an appeal to this Court on grounds:; that the learned trial Judge was in error in failing to properly analyze the evidence as required by law; that the leading police officer committed an offence of making a false document; that there were contradictions in the prosecution witness evidence, particularly concerning the people present in the room, the items in the room, and how those items came to be there; that the trial Judge failed to consider discrepancies in the description of the items subjected to analysis at the Government Chemist, including that the correct expert report was not adduced or that the recovered items were never subjected to the proper analysis; that, further, both the police officers and the Appellant admitted to having been at Mwembe Tayari, yet the trial court did not consider the possibility that the Appellant may have been arrested outside the hotel, as he claimed; that the trial Judge failed to consider the possibility that the CCTV footage was concealed because it was prejudicial to the prosecution’s case; and that the High Court confirmed the conviction against the weight of evidence, and upheld an illegal sentence. 25.Both the Appellant and the Respondent filed written submissions and, when the appeal came up for hearing, learned counsel Mr. Magolo and Mr. Chacha Mwita appeared for the Appellant while learned prosecution counsel Ms. Nyawinda appeared for the Respondent. 26.In their submissions, counsel begun by submitting on the legality of the charge sheet. It was submitted that while the Appellant was charged with trafficking narcotic drugs on 16th March 2018 at Regency Park Hotel, all prosecution witnesses, including PW 13, the investigating officer, confirmed that he had already been arrested and detained on 15th March 2018. Consequently, he could not have committed the alleged offence on the later date; and that failure to amend the charge to align it with evidence was contrary to Section 214 of the Criminal Procedure Code and the principles of Section 134, which therefore rendered the charge sheet incurably defective. 27.Counsel went on to submit that the High Court failed in its legal duty as the first appellate court to undertake a fresh, thorough, and independent re- evaluation of the evidence; and that, instead, the court merely confirmed the findings of the trial court without addressing glaring inconsistencies that were fatal to the prosecution’s case. Counsel argued that the lower courts’ conclusions were based on erroneous assumptions and a misapprehension of the evidence. 28.On the material contradictions, counsel stated that the prosecution witnesses’ evidence differed in the nature and color of the narcotic substance allegedly recovered, the circumstances of the arrest, and the number of persons in the hotel room. It was argued that these inconsistencies, rather than being minor, point to manipulation or fabrication of the evidence, and therefore destroyed the credibility of the prosecution’s case. 29.As concerns the different descriptions of the narcotics, it was submitted that what was alleged to have been recovered were brownish granules, and that what was then forwarded to the Government Chemist was an envelope containing a brownish powdery substance which description differed from that of the substance recovered; and that, further, the sample certificate indicated that the 3 packages contained a creamish powdery substance. Counsel submitted that the differences in description of the substances recovered and what was subjected to forensic testing would infer that the substances were not the same. 30.Submitting on the mishandling of the CCTV footage, counsel asserted that, PW17 having stated that it was tampered with, would infer that the footage was adverse to the prosecution’s case as it was supportive of the Appellant’s consistent claim that he was arrested at Mwembe Tayari, and not in the hotel room; that the learned Judge was wrong to conclude that the Appellant was arrested in the hotel room. In addition, counsel contended that there was serious impropriety in the conduct of the police officers who signed hotel documents, and the Investigating Officer paid for the room and took the receipt pretending to be the Appellant; that, further, there were unexplained discrepancies in hotel records where the Appellant was recorded as Kenyan; and that, since the Appellant’s evidence, was that he was a Tanzanian, the only conclusion to be reached is that he was not the person who booked the room. 31.Counsel further submitted that the chain of custody for the recovered narcotics was fundamentally broken; that PW13 locked the substance in a DCIO’s office safe, yet Sgt. Mjomba (PW16), without explanation, was later found to be in possession of the narcotics and transported them to Nairobi, despite the existence of a Government Chemist in Mombasa; that further breaks in the chain of custody was unexplained delays of one week before dispatch of the samples and two months before analysis, with no documented continuity of possession; and that the Narcotic Drugs and Psychotropic Substances Regulations, 2006 require strict adherence to custody, transport, and documentation rules, which requirements were not complied with. 32.It was further submitted that the High Court improperly shifted the burden of proof to the defence by dismissing the Appellant’s evidence as mere denial despite corroboration by co-accused persons and the absence of evidence establishing exclusive possession of the suitcases or their contents. Counsel concluded that the conviction was against the weight of evidence as the offence was not proved beyond reasonable doubt. 33.Finally, counsel challenged the sentence as harsh, excessive, unlawful, and submitted that it was imposed without proper exercise of judicial discretion; and that the High Court failed to appreciate that the mitigating factors were not considered. 34.On their part, learned prosecution counsel submitted that the prosecution had proved the offence beyond reasonable doubt, and that the High Court properly upheld the conviction and sentence by the trial court; and that the first appellate court had discharged its mandate in re-evaluating the evidence and finding that all the ingredients of the offence under Section 4(a) of the Narcotic Drugs and Psychotropic Substances Act No. 4 of 1994, were established. 35.Regarding the charge sheet, counsel submitted that the date of arrest having been indicated as 16th March 2018 did not unjustly prejudice the Appellant because the charge was clear and the Appellant was aware of the case against him. He cross-examined the witnesses and therefore suffered no injustice. It was submitted that, in any event, under Section 382 of the Criminal Procedure Code, an irregularity in a charge sheet does not automatically invalidate it. 36.With respect to the chain of custody, counsel contended that the evidence of seizure, the production of the inventory and the manner of conveying the substance to the chemist were all admissible, and no proper objection was raised during the trial; that, further, the issue concerned findings of fact which this Court in a second appeal should not disturb, unless there was no evidence or a misapprehension of the evidence. The case of Richard Munene vs Republic [2018] KECA 186 was cited in support of this proposition. 37.In relation to alleged contradictions in the description of the seized narcotics, counsel argued that the variations (such as “creamish granules” or “brownish powder”) were minor and did not go to the root of the case. 38.In relation to the CCTV footage, counsel acknowledged that the footage was not produced, but maintained that the explanation that it was tampered with was plausible and its absence did not occasion a miscarriage of justice; that the evidence already on record was sufficient to support the conviction without the CCTV footage; and that no prejudice was occasioned to the Appellant. 39.Finally, counsel submitted that the sentence of 30 years’ imprisonment together with a fine of Kshs. 90,000,000 was within the statutory limits under Section 4(a) of the Narcotic Drugs and Psychotropic Substances Act, and was lawfully imposed. It was submitted that the decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others [2024] KESC 34 (KLR) reaffirmed that this Court will not interfere with a sentence unless a wrong principle was applied, a material factor was overlooked, or the sentence was manifestly excessive, and submitted that none of those circumstances obtained. 40.In conclusion, counsel urged that the appeal was without merit as there was no cause for interference with either the conviction or sentence. 41.Our mandate on a second appeal, such as the one before us, is confined by dint of Section 361(1) of the Criminal Procedure Code to matters of law only. Accordingly, this Court’s mandate is limited to examining whether the High Court misapprehended the law, applied wrong legal principles, or reached legal conclusions not grounded on evidence. Nevertheless, the Court is empowered to intervene where findings of fact by the lower courts are shown to be based on no evidence, on a misapprehension of the evidence, or are reached on demonstrably wrong principles as established in Chemangong vs Republic [1984] KLR 611. 42.Having carefully examined the grounds of appeal and the submissions, there are five issues that arise for determination in this second appeal:i)Whether the charge sheet was defective;ii)Whether the first appellate court properly discharged its mandate in re- evaluating, re-analyzing and reconsidering the entire evidence on record as by law required;iii)Whether the trial court and the first appellate court were wrong in finding that the alleged inconsistencies in the prosecution evidence were immaterial and did not affect the integrity of the case or the conviction;iv)Whether the non-production of the CCTV footage fatally weakened the prosecution case; andv)Whether the sentence imposed was lawful, reasonable, and within the proper exercise of judicial discretion in line with Section 4(a) of the Narcotic Drugs and Psychotropic Substances Act. 43.We begin with the question as to whether the charge sheet was defective as it captured the date that the Appellant was charged with trafficking narcotic drugs on 16th March 2018 at Regency Park Hotel, yet all the prosecution witnesses including PW13, the investigating officer, confirmed that he was arrested and detained on 15th March 2018. 44.A consideration of the record discloses that the issue was raised during the first appeal, but the learned Judge did not determine it. For this reason, it becomes necessary for this Court to reach a finding on whether the charge sheet was defective. 45.With regard to the charge sheet or information and the particulars, Section 134 of the Criminal Procedure Code clearly provides that:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 46.In determining whether a charge sheet was defective or not, this Court in the case of Sigilani vs Republic [2004] 2 KLR, 480 stated that:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable the accused to prepare his defence.” 47.In the case of Benard Ombuna vs Republic [2019] eKLR this Court held:“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 48.In the instant case, the error relating to the date was minor and purely technical in nature. It was not controverted that the Appellant was charged with the offence of trafficking narcotic drugs and that the arrest took place at the Royal Park Hotel. The record shows that the Appellant clearly understood the case he was required to meet as he actively participated in the proceedings, cross- examined the prosecution witnesses, and presented a defence, notwithstanding the error in the dates specified in the charge sheet. There is no indication that he was ever confused as to the incident in question or the circumstances forming the basis of the charge. The narrative of events, from the arrest to the testimony of witnesses, consistently referred to the same occurrence, leaving no doubt as to the subject matter of the prosecution. In any event, such errors are not automatically fatal to a conviction, and are curable under Section 382 of the Criminal Procedure Code, particularly as the defect did not occasion any confusion, prejudice, or injustice to the Appellant. 49.The next question is whether the first appellate court properly discharged its mandate of re-evaluating the evidence. The Appellant complained that the High Court failed to reevaluate and re-analyse the evidence and that, by so doing, failed to appreciate the material contradictions in the prosecution’s case, such as the differences in the description of the substance that was seized, thereby creating doubt as to the nature of substance allegedly recovered from the Appellant; that, further, the learned Judge did not appreciate that the failure by the prosecution to adduce the CCTV footage that was supportive of the Appellant’s claim that he was arrested in Mwembe Tayari, and not in Room 413 with the narcotics was adverse to the prosecution’s case. It was argued that, on account of the contradictions and deficiencies in the prosecution evidence, the High Court ought to have resolved them in the Appellant’s favour. 50.On the contradictions in the physical description of the seized substance, the record showed that different descriptions were ascribed to the seized substances by the prosecution witnesses. For instance, PW4’s stated that a brownish substance was recovered from one of the suitcases, while PW6 similarly saw a brown substance inside the bag. On the other hand, PW7’s, evidence was that the officers recovered creamish granules suspected to be narcotics, and the inventory dated 15th March 2018 described the substance as creamish pellets, while, the certificate of sampling indicated that the substances were a creamish granular substance; and, finally, the Government Analyst’s report referred to the material tested as a brownish powdery substance. 51.In the case of Richard Munene vs Republic [2018] KECA 186 (KLR), this Court stated:“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.” 52.In the case of Dickson Elia Nsamba Shapwata & another vs The Republic, Cr. App. No. 92 of 2007, the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded that:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 53.Upon reevaluating the evidence, it is evident that both the trial court and the first appellate court considered the descriptive differences and found them to be superficial in nature. The courts below were of the view that the variation of terms describing the narcotics as brownish or creamish, and as granules, pellets or powder did not discredit the prosecution evidence or go to the core elements of the offence. The descriptions given were merely reflective of the natural differences in perception and classification by various witnesses, rather than a negation of the existence or identity of the substance. Our assessment of the descriptions leads us to similarly conclude as did the courts below that the differences in description of the narcotics were immaterial and did not create any doubt as to the type of substance found in the Appellant’s possession, with the result that this ground has no merit. 54.With respect to the failure to produce the CCTV footage, it was asserted that the non-production (and alleged tampering) with the CCTV footage was a material defect in the prosecution’s case that should have been resolved in the Appellant’s favour and ought to have led to a discharge of the case; that the footage would have proved his version of events, namely that he was arrested outside the hotel rather than in the hotel room. It was contended that disappearance or tampering with the CCTV footage gave rise to an adverse inference against the prosecution. 55.This issue was addressed by the first appellate court, which took into account that, when the footage was retrieved and handed over for analysis, it was found to have been tampered with. Both the trial court and the first appellate court concluded that, in the circumstances, the explanation provided by the prosecution was plausible, and that the absence of the footage did not occasion a miscarriage of justice. 56.This Court in the case of Columbus Dindi Okoth vs Republic [2008] KECA 174 (KLR) held that:“It is not however, in every case where the prosecution fails to call certain witnesses that a court will draw an adverse inference. In cases where, as here, the evidence is clear on a particular issue, there would be no necessity of drawing an adverse inference. A fact may be proved by the testimony of one witness (see Abdullah Bin Wendo v. R [1953] EACA 166; and there would therefore be no necessity of calling a superfluity of witnesses. An adverse inference is normally drawn where the evidence tendered to prove an essential fact in a case is insufficient or barely sufficient.” 57.It is a well-established principle that the prosecution bears the duty of adducing relevant evidence in its possession. Where crucial evidence is in the prosecution’s control and is not produced, the court may draw an adverse inference, provided the accused can show that the evidence was crucial for the defence’s case and that the non-production was without provision of a reasonable explanation. But having said that, the mere fact of non-production does not automatically connote a suppression of evidence or fatal prejudice. The test is whether, in the totality of the evidence, the absence of the footage rendered the trial unfair or the prosecution’s case unsafe. See Bukenya & Others vs Uganda [1972] EA 549. 58.In this case, the prosecution’s case was cogent and robust: multiple witnesses testified as to the recovery of the narcotic substance, and the Government Chemist’s analysis confirmed that it was heroin. The Appellant was found in Room 413 together with the illicit substance where the search took place. Both the trial court and the High Court concurrently reached a finding of fact that the narcotics were recovered together with the Appellant in Room 413 and not in Mwembe Tayari. But the absence of the CCTV footage notwithstanding, when the totality of the evidence adduced is considered, it becomes evident that the prosecution’s case did not rest solely on the CCTV footage, as there was ample evidence on record capable of sustaining a conviction. 59.Moreover, the Appellant has not pointed to any specific material in the CCTV footage that would have exonerated him or significantly altered the trajectory of the prosecution’s case. The suggestion that the footage might have supported his defence does not, in and of itself, demonstrate that non-production resulted in any prejudice. In effect, this ground is without merit and is accordingly dismissed. 60.Regarding the allegation that there was a break in chain of custody, the Appellant contended that the custody of the recovered narcotic substance was broken when PW13 was alleged to have locked it in a DCIO office safe and Sgt. Mjomba without explanation transported it to Nairobi, despite there being a Government Chemist in Mombasa, and therefore the integrity of the exhibits was not guaranteed. 61.It is trite law that in offences involving narcotic drugs and other sensitive or easily tampered exhibits, the prosecution is expected to establish a credible chain of custody to ensure that what was seized is the same substance as ultimately presented for analysis and produced in court. See Moses Banda Daniel vs Republic [2016] KECA 694 (KLR). In addressing this issue, both the trial court and the first appellate court found that all the witnesses who handled the narcotic substance, from its seizure in Room 413 to its marking and storage, all testified and accounted for their respective roles in the handling of the substance pursuant to which the Government Chemist confirmed receipt of the marked samples and producing a duly authenticated analysis report indicating that the substance was heroin. 62.At no point did the Appellant demonstrate any gap suggestive of malpractice or a possibility that either the narcotics exhibits or the samples were substituted or tampered with. The concerns raised by the Appellant were roundly speculative and unsupported by the prosecution evidence. On the safe custody of the narcotics, the evidence shows that, at all times, they remained at Port Police station, Mombasa, in the custody of Sgt. Mjomba, the Investigating officer. The lower courts were satisfied that the chain of custody was maintained with precision, with the narcotics being at all times handled with caution so as to preserve its integrity at all stages. Our reevaluation of the evidence would lead us to conclude, as did the two courts below, that the chain of custody of the narcotics was not in any way impugned or compromised at any stage of the proceedings. This ground is without merit and is dismissed. 63.Bearing all we have said above in mind, upon a reevaluating the record, we are satisfied that the High Court carried out an independent appraisal of the evidence and rightly upheld the trial court’s finding that the Appellant was found trafficking by storage of narcotic drugs. The Judgment discloses that the first appellate court reviewed the evidence of 17 prosecution witnesses, defined the offence of “trafficking by storage, and rightly concluded that the Appellant was in possession of the drugs which were found in his hotel room where he was arrested in possession the narcotics. Consequently, we are satisfied that the first appellate court discharged its mandate in law, and that the Appellant has not demonstrated any error of principle on the part of the High Court, with the result that, this ground is without merit and fails. 64.On sentence, this Court in the case of Kabibi Kalume Katsui vs Republic [2015] KECA 711 (KLR) held that:“Under the Narcotic Drugs and Psychotropic Substances (Control) Act, sentence is still discretionary. We are of course in no way suggesting that under this Act this Court or the High Court has an automatic duty to interfere with the exercise of discretion by the trial court as sentencing is discretionary. That an intervention on discretion is only justified when it is wrongly exercised such as when the court takes in irrelevant facts or leaves out relevant ones and it is automatic when the wrong sentence is imposed which is legally erroneous.”See also Wanjema vs Republic [1971] EA 493 and Diego v Republic [1985] KLR 621. 65.The sentence imposed on the Appellant was as by the law prescribed under Section 4(a) of the Narcotic Drugs and Psychotropic Substance (Control) Act No. 4 of 1994. As such, the attempt by the Appellant to question the legality of the sentence is a matter of fact which this Court has no jurisdiction to determine on a second appeal and, for this reason, we have no basis on which to interfere with the sentence. See Omar Bakari Mwakuro vs Republic [2014] KECA 361 (KLR). 66.In sum, as did the trial court and the High Court, we come to the conclusion that the prosecution discharged its burden and proved the offence beyond any reasonable doubt. The conviction and sentence of the trial Magistrate’s Court, as upheld by the High Court, are hereby affirmed, with the result that the appeal is without merit and is hereby dismissed in its entirety. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.………………………………JUDGE OF APPEALG.W. NGENYE-MACHARIA…………………………...JUDGE OF APPEAL I certify that this is the true copy of the originalsigned DEPUTY REGISTRAR