[2017] KEHC 7201 (KLR)
The court found that the prosecution failed to prove that the appellant was in actual or constructive possession of the narcotic drugs, as the drugs were recovered in a coffee plantation not linked to her. The mere fact that the appellant attempted to run away was deemed insufficient to establish possession, as...
Source-derived case information.
- Citation
- [2017] KEHC 7201 (KLR)
- Parties
- Appellant: Jane Wachera Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 108 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant discharged
- Judges
- DW Mbuteti
- Legal Topics
- Narcotic Drugs Possession, Evidence Evaluation, Criminal Appeal, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wachera Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced was sufficient to prove possession of narcotic drugs by the appellant beyond reasonable doubt.
- 2 Whether the sentence imposed was manifestly harsh and excessive.
Ratio Decidendi
The court found that the prosecution failed to prove that the appellant was in actual or constructive possession of the narcotic drugs, as the drugs were recovered in a coffee plantation not linked to her. The mere fact that the appellant attempted to run away was deemed insufficient to establish possession, as suspicion alone does not amount to evidence. Consequently, the conviction was not supported by the evidence on record, and the appeal was allowed under section 352A of the Criminal Procedure Code. The conviction was quashed and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant discharged
Orders
- The appellant's conviction is quashed.
- The sentence passed against the appellant is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 108 OF 2015
(Appeal from original Conviction and Sentence in Kangema Criminal Case No 232 of 2015 – E M Kagoni, SRM)
JANE WACHERA MWANGI……..………….…..…APPELLANT
VERSUS
REPUBLIC…………………..….….…………….RESPONDENT
J U D G M E N T
1. The Appellant herein, Jane Wachera Mwangi, was convicted after trial of being in possession of narcotic drugs contrary to section 3(1) as read with section 2(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No 4 of 1994. She was sentenced to serve 5 years imprisonment. She has appealed against both conviction and sentence. On 15/04/2016 the Appellant was admitted to bail pending disposal of her appeal.
2. The conviction is challenged upon the ground that there was not sufficient evidence to justify the conviction. The sentence is challenged upon the ground that it was manifestly harsh and excessive.
3. The Director of Public Prosecutions does not support the conviction and has so informed the court both orally in court (on 29/02/2016 at the hearing of the bail application) and in writing by letter dated 02/02/2017 (filed on 16/02/2017).
4. I have perused the record of the trial court. The police searched the Appellant’s house and did not find anything incriminating. The drugs in question were subsequently recovered in a coffee plantation. It was not alleged that the plantation belonged to the Appellant, or that she had placed the drugs there. Possession, actual or constructive, was thus not proved. The fact that the Appellant attempted to run away may have raised suspicion in the eyes of the police officers; but suspicion alone is not evidence.
5. I am not satisfied that the Appellant’s conviction can be supported. I will in the event summarilyallow this appeal undersection 352Aof theCriminal Procedure Code. The Appellant’s conviction is hereby quashed and the sentence passed against her set aside. She is hereby discharged from her cognizance. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 9TH DAY OF MARCH 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANGA THIS 10TH DAY OF MARCH 2017