[2015] KEHC 2824 (KLR)
The conviction was quashed because there was no evidence that the appellant was in actual or constructive possession of the cannabis. The substance was found outside the appellant's house, within a compound not shown to be under his exclusive control, and the possibility that someone else placed it there could not...
Source-derived case information.
- Citation
- [2015] KEHC 2824 (KLR)
- Parties
- Appellant: John Irungu Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 30 of 2014
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- DW Mbuteti
- Legal Topics
- Possession of Narcotics, Constructive Possession, Evidence Procedure, Admissibility of Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Irungu Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was in actual or constructive possession of cannabis as charged.
- 2 Whether the prosecution proved exclusive possession and access to the compound by the appellant.
- 3 Whether the Government Analyst's report was properly introduced into evidence.
Ratio Decidendi
The conviction was quashed because there was no evidence that the appellant was in actual or constructive possession of the cannabis. The substance was found outside the appellant's house, within a compound not shown to be under his exclusive control, and the possibility that someone else placed it there could not be excluded. Furthermore, the Government Analyst's report, a vital piece of evidence, was not properly introduced in court as required by law. The prosecution did not support the conviction, and the court found the conviction unsafe, setting aside both the conviction and sentence.
Court Disposition
appeal_allowed
Orders
- The appellant's conviction is quashed.
- The sentence imposed upon the appellant is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 30 OF 2014
(Appeal from conviction and sentence in Murang’a CM Criminal Case No 291 of 2013 – T. Nzyoki, Ag. SPM)
JOHN IRUNGU MWANGI………....……………… APPELLANT
VERSUS
REPUBLIC…………………………………………. RESPONDENT
J U D G M E N T
1. The Appellant John Irungu Mwangi was charged with being in possession of cannabiscontrary tosection 3(1) & (2) (a)of theNarcotic Drugs and Psychotropic Substances (Control) Act, No 4 of 1994. The particulars of offence alleged that on 22nd May 2013 at Gituto Village, Wanjengi Sub-location in Kahuro District of Murang’a County, he was found being in possession of 85sachetsof cannabis which was not in medicinal preparation.He was convicted as charged after trial and sentenced on 20/03/2014 to serve four (4) years imprisonment. He has appealed against both conviction and sentence. Various grounds of appeal were advanced.
2. I have read through the record of the trial court, including the judgment dated and delivered on 10/03/2014. There was no evidence that the Appellant was found in actual possession of the substance described in the charge as cannabis and as bhang by the witnesses. The evidence placed before the trial court was that the substance was recovered outside his house (but within the compound) at night while the Appellant and his family were eating supper inside the house. The house was barely 10 meters from a public road. He was not present at the time and actual place of the alleged recovery.
3. It appears in the judgment, though not expressly stated, that the trial court relied upon the doctrine of constructive possession. However, there was no evidence that the Appellant had exclusive possession and access to the compound. The possibility that someone else could have placed the substance there could not be excluded.
4. There was also no basis laid for not calling the maker of the Government Analyst's report to produce it in court; no application was made under section 67 of the Evidence Act, Cap 80. The report was a vital piece of evidence in the prosecution case and ought to have been properly introduced in evidence.
5. The conviction of the Appellant is clearly unsafe, and learned Prosecution Counsel properly does not support it. I will allow the appeal in its entirety. The Appellant’s conviction is hereby quashed and the sentence imposed upon him set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 11TH DAY OF JUNE 2015
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 12TH DAY OF JUNE 2015