[2013] KEHC 2416 (KLR)
The court found that the appellant was present in his house at the time of the search and that 16 stones of cannabis sativa were discovered under his bed. The court held that, even if the appellant's claim that another individual (Survivor) brought the drugs was true, the appellant was aware of the presence of the...
Source-derived case information.
- Citation
- [2013] KEHC 2416 (KLR)
- Parties
- Appellant: Isack Mambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 215 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- GO Shikwe
- Legal Topics
- Possession of Narcotics, Evidence Handling, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isack Mambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was lawfully convicted for possession of cannabis sativa contrary to the Narcotic Drugs and Psychotropic Substances (Control) Act.
- 2 Whether the prosecution proved beyond reasonable doubt that the appellant had custody and control of the narcotic substance.
- 3 Whether the defence of third-party ownership ("Survivor") raised by the appellant was credible.
Ratio Decidendi
The court found that the appellant was present in his house at the time of the search and that 16 stones of cannabis sativa were discovered under his bed. The court held that, even if the appellant's claim that another individual (Survivor) brought the drugs was true, the appellant was aware of the presence of the narcotic in his house and exercised custody and control over it. The defence did not call Survivor as a witness, and the court found this omission significant. The court was satisfied that the prosecution had proved its case beyond reasonable doubt, and that the conviction and sentence were proper and reasonable. Accordingly, the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The conviction and sentence of seven years imprisonment are upheld.
- The appeal is rejected and dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 215 OF 2011
ISACK MAMBO …......... ….....................................….…..…..APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No 379 of 2008 of the Senior Resident Magistrate's Court at Wundanyi Hon. F. Munyi - RM)
JUDGMENT
The Appellant ISACK MAMBOwas Convicted and Sentenced to seven years imprisonment for the offence of being in possession of Cannabis Sativa contrary to section 3(1) as read with section 3(2) of the Narcotics drugs Act No. 4 of 1994.
The particulars are that on the 2nd day of October 2008 at Mwatunge Village, Mwatate, Taita Taveta County, he was found in possession of 16 stones of Cannabis Sativa of the value of Ksh. 8,000/= which was not in the form of medicinal preparation.
Administration police officers Senior Sergent Nicholas Musambi (PW1), APC Fumo Hiribae (PW2), and another proceeded to the house of the Accused on the 2nd October, 2008 upon receiving information that he had Bhang in house.
Upon interrogation they proceeded to search the house and under a bed recovered two plastic Marlboro Cigarette paper bags. Upon opening inside they recovered 16 stones of Cannabis Sativa wrapped in Newspapers.
PW 3 PC Tony Akungu prepared an exhibit Memo form and took a sample of Bhang to a Government analyst. He later received a report indicating that the dry plant material was Cannabis Sativa.
In his defence the Appellant denied the charge insisting that it is police who told him that a man by the name Survivor taken Bhang to his house. He denied. Upon search they recovered Bhang in his bedroom. They passed at the home of survivor but they did not find him. They proceeded to police station but before they reached “Survivor” appeared and admitted that the Bhang was his but they did not want to hear of this.
The so called “Survivor“ was not called by the defence to testify.
There is no dispute that the 16 rolls of stones of Bhang were found in the house of the Accused to be exact under his bed. The time was very early in the morning at 6:30 am.
The Appellant was found in his house. If the Bhang was taken there by the so called “Survivor” then he should have been aware of its presence in his house.He must be taken to have exercised custody and control over it. Either the so called “Survivor” is a creation of the defence or in the alternative he was an accomplice.
When the investigating officer was producing the Government analyst report the Accused was asked whether he had any objection to its production to which he did state that he had no objection.
I am satisfied that the Conviction was proper and safe. The Sentence of Seven years Imprisonment is found to be reasonable.
There is no good reason found to disturb the Conviction
and Sentence. Appeal rejected and dismissed.
Judgment dated, delivered in open Court this 5th day of September, 2013.
….............
M. MUYA
JUDGE
5TH SEPTEMBER, 2013
In the presence of:-
Learned State Counsel Miss Ogweno
Appellant present
Court clerk Musundi