[2023] KEHC 26384 (KLR)

Irungu v Republic (Criminal Appeal 31 of 2023) [2023] KEHC 26384 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26384 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 31 of 2023

DR Kavedza, J

December 8, 2023

Between

Mary Waithera Irungu

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Kibera Criminal Case No. 3348 of 2013 dated 10th December 2021 (Hon. C. K. Mwaniki (SRM))

Judgment

1. The appellant, was tried and convicted of the offence of trafficking in narcotic drugs contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. Upon her conviction, the appellant was sentenced to serve 14 years imprisonment.

2. Aggrieved by her conviction and sentence, the appellant proffered the present appeal. In her petition of appeal filed through her advocates, M/S Oundu & Associates, the appellant advanced a total of seven (7) amended grounds of appeal.

3. In summary, the appellant complained that the learned trial magistrate erred in law and fact by convicting her on evidence which was evidence which was insufficient to prove her guilt beyond any reasonable doubt, failing to consider her defence and failing to consider her plea in mitigation and imposing a harsh sentence. She prayed that her conviction be quashed and her sentence be set aside.

4. As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

5. The Prosecution called seven witnesses to prove their case. The facts as brought out in the testimonies of these witnesses are that PC Constable Bernard Nyamosi (PW1), serving at the Anti-Narcotics Unit, and his colleagues were profiling passengers at Jomo Kenyatta International Airport when they stopped the appellant arriving from Senegal. Her travel documents revealed a deviation from her return route, raising suspicion. Senior Superintendent Adan Guyo (PW4) joined them, and upon searching her luggage, they discovered 128 cans containing sachets with a suspicious white powder. One can was opened, revealing padding around the circumference. The items were seized, and a Certificate of Destruction dated April 29, 2013, was presented in evidence. The suitcase with personal effects was returned to the appellant. During cross-examination, PW1 acknowledged missing details in the Certificate of Destruction.

6. The crime scene officer, Jeremiah Arudi (PW3) took photographs of the appellant, the suitcases, the nametag on the luggage, the boxes retrieved from the suitcases, the cans and their content. The photographs were processed under his supervision. They were produced as exhibits.

7. The recovered sachets were weighed by PW4 and sampled by Timothy Ondieki Osoro (PW6) the Government Analyst. The total weight of the substance contained in the 127 sachets came to 2071. 6 grams and an analysis on the spot confirmed that the substance was Cocaine, a prohibited substance under Act No. 4 of 1994,

8. SSP Justus Irungu (PW5), a Gazzeted valuation officer, issued a certificate of weighing relying on the weight given by PW6. PW5 assigned a market value of Kshs.4000/- for each gram, which added up to a total of Kshs.8. 282,400/- worth of cocaine in market value for the 2,071. 6 grams.

9. The physical narcotic drugs were not presented at the trial court nor produced as exhibits. To explain why, the Court Administrator Kibera Law Courts was called as the last witness (PW7). She explained that the substance was destroyed but the original Certificate of Destruction was not in the original court file and she produced the file as an exhibit to so prove.

10. When placed on defence, the appellant gave sworn defence and stated that she was returning to Nairobi from Dakar in Senegal where she had been visiting a friend when she was stopped at JKIA by a male officer. She was taken to an office with two women, ordered to open her suitcase, and searched without explanation. After repacking, she was arrested, taken to JKIA Police station, and charged with trafficking. Her suitcase was never returned, and she claimed to have suffered since then, affecting her children's education and resulting in job loss. The appellant maintained her innocence and requested release.

Analysis and determination. 11. In her appeal, the appellant argued that the prosecution failed to prove her guilt beyond a reasonable doubt. Citing the case of Abanga alias Onyango V Republic, she contended that the prosecution's case relied on circumstantial evidence, emphasizing the destruction of the alleged seized substance. The appellant claimed inconsistencies and contradictions in the prosecution witnesses' testimonies, especially regarding exhibits. She criticized the selective photography at the crime scene, alleging that properly documented photos would have prevented contradictions. The appellant also questioned the admission of crime scene photographs taken by non-gazetted officers. Furthermore, she asserted that the trial magistrate unjustly dismissed her defense without adequate justification, urging the court to find the appeal merited and allow it.

12. On the part of the respondent, Ms Oduor elaborately analysed the evidence adduced before the trial court and asserted that the evidence presented by the prosecution proved beyond any reasonable doubt all the ingredients of the offence preferred against the appellant, namely, identity of the recovered substance as a narcotic drug, its possession by the appellant and its conveyance.

13. I have considered the grounds of appeal, the evidence on record, the written submissions made on behalf of the parties and all the authorities cited. The appellant was convicted of the offence of trafficking in 2071. 6 grams of a narcotic drug namely cocaine by conveying it in a travelling bag. The term trafficking is defined in Section 2 of the Act as:“The importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof…”

14. In Gabriel Ojiambo Nambesi vs Republic, [2007] eKLR, the Court of Appeal addressed itself to the above definition and what is required to prove the offence of trafficking in narcotic drugs. The court stated thus:“It is evident from the definition of trafficking that the word is used as a term of art embracing various dealings with narcotic drugs or psychotropic substances. In our view for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking. In addition and more importantly, the prosecution should at the trial prove by evidence the conduct of an accused person which constitutes trafficking.”

15. In the instant case, the prosecution’s case is that in the course of profiling passengers at JKIA, PW1 and PW2 recovered from the appellant’s luggage a whitish powdery substance which was scientifically analysed by PW6 and found to contain cocaine, which is a prohibited substance.

16. The appellant argued that the expert opinion of PW6 was just an opinion and not conclusive of a fact in issue; that expert opinion can never convict unless it is supported by other evidence. The appellant thus submitted that it was incumbent upon the prosecution to produce the physical substance seized from the appellant in court. She contended that failure to produce the physical evidence was fatal to the case.

17. The prosecution in this regard endeavoured to prove that indeed, there were narcotic drugs that were seized, weighed, sampled and analysed, and there are exhibits to this effect. PW6 issued a certificate of sampling and a certificate of weighing which were properly produced in court. PW3 also took photographs of the substances and the said photographs were produced.

18. The appellant argued that PW3 who photographed the scene was not a gazetted officer in accordance with the Narcotic Drugs Regulations of 2006 and as such, the photos ought not to have been admitted as evidence in court. I have gone through the trial record and noted that the appellant did not object to the production of the photographs by PW3 in court, neither did she question whether he was a gazetted officer. Raising the objection to the production of the photos at this point cannot therefore stand and the ground is dismissed.Top of Form

19. With regard to the destruction of the drugs, the prosecution sought to rely on the certificate of destruction, which was rightly questioned for lacking important features such as the name of the magistrate present during the destruction. The document was thus not produced as evidence. Consequently, as evidence of destruction, the prosecution then opted to produce the original court file in Kibera Criminal case 6527 of 2006, whose judgement was quashed and a retrial ordered by the High Court. The trial magistrate went ahead to rely on its record and held thus;“While it (the original trial record) may have no specific destruction order, its proceedings establish that the court was satisfied as to the existence of a cache of narcotic drugs.”

20. The trial court taking this direction was however erroneous from the get go. It is standard procedure that once a retrial is ordered, the original trial file should at no point be relied on. The essence of ordering a retrial is that there was an error in the original trial, hence commencing de novo. Relying on its record, or even allowing the file to be produced as evidence is untenable. The trial court thus opting to rely on the original file as proof of establishment of the existence of the narcotic drugs was erroneous.

21. However, all is not lost. This court is satisfied that the Government Analyst Report dated 6th December 2006 sufficed, as it had certified what the drugs the Appellant had been arrested with were, and as I have already found above, the photos produced reveal the cans in which the sachets containing the cocaine.

22. Appreciably, the Appellant in her defence confirmed having been present at the time the cocaine was seized. She therefore placed herself at the scene of the crime. Having analysed her defence, it did not sound plausible and appeared to have been merely a denial to acquit herself of the said offence.

23. This court therefore finds that the Prosecution proved their case beyond reasonable doubt as the Appellant was in fact caught red-handed trafficking cocaine in a travelling bag. The conviction is affirmed.

24. With regard to the sentence, Ms. Oduor opined that the sentence was lawful and that the trial court considered all the mitigating circumstances before passing the sentence. In the premises, she urged me to dismiss the appeal in its entirety for lack of merit. The offence under section 4 (a) of the Act attracts a sentence of a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment.

25. The trial court considered that the case against the appellant has taken long, having commenced in 2006, and that the appellant has advanced in age; she was 42 years at the time of the offence and is now 59 years old. The court further considered that the appellant’s health has gradually deteriorated and that she is remorseful. The court exercised discretion and sentenced the appellant to 14 years imprisonment.

26. I find that the sentence was legal and considered all circumstances. This court sees no justification of interfering with the sentence as the same is lawful.The period spent in custody during trial to be taken into account.It is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. _____________D. KAVEDZAJUDGEIn the presence of: