[2023] KEHC 26072 (KLR)

Johnti & another v Republic (Criminal Appeal E216 of 2022) [2023] KEHC 26072 (KLR) (Crim) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26072 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E216 of 2022

DR Kavedza, J

December 1, 2023

Between

John Mungai Wanjiru Alias Johnti

1st Appellant

Antony Kungu Mungai Alias Warfa

2nd Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. L. O Onyina (CM) on 31st January 2022 at JKIA Chief Magistrate’s Court Criminal case no. 92 of 2018 Republic vs John Mungai Wanjiru & Antony Kungu Mungai)

Judgment

1. The appellants were charged and after a full trial convicted for the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, no. 3 of 1994. They were each sentenced to serve 10 years imprisonment. In addition, they were sentenced to pay a fine of Kshs. 500,000 each in default to serve 12 months imprisonment.

2. Being aggrieved, they filed an appeal challenging their conviction and sentence. The grounds of appeal have been coalized as follows: They challenged the totality of the prosecution’s evidence against which they were convicted. They contended that the sentence imposed was harsh, excessive and untenable. They urged the court to quash their conviction and set aside their sentence.

3. The prosecution called ten (10) witnesses in support of their case. Ann Wacera Mugo, a businesswoman with rental properties in Kiambu's Kirigiti area, testified on March 7, 2018. Following her daughter's information about potential tenants, two individuals, identified as Mungai and his son, approached her on March 8 at 10:00 am. They expressed interest in renting a house, and she explained the required one-month rent (Ksh. 14,000/-) and a deposit (totaling Ksh. 28,000/-). Having already viewed the house the previous evening, Mungai and his son moved in later that day.

4. On July 12, 2018, PW 1 received news from a tenant about individuals resembling police officers looking for someone using walking sticks. Investigating, she found her property surrounded by police officers. About an hour later, PW 6 entered the appellants’ house. Subsequently, two police officers questioned PW 1 about Mungai, and she was asked to confirm his presence. Upon entering the house, she observed police officers inside, one writing, and Mungai seated with a weighing machine and a glass containing a powdery substance on a mattress. Afterward, PW 1 was instructed to return home, with the promise of a call.

5. Around 7:00 pm, Agnes called PW 1 to deliver a padlock to Mungai's house, where she found Mungai, Agnes, and a police officer. As she left, she encountered the watchman and, at approximately 7:30–8:00 pm, witnessed Mungai leaving in handcuffs with officers carrying unidentified items. During her testimony, PW 1 identified a glass container, a powdery substance, and a weighing machine. She also mentioned cutting pieces of paper on the ground. PW 1 clarified that Mungai, the first appellant, paid rent in cash, but she did not have the rent payment records with her.

6. Police Constable Jonathan Sankale (PW2) from the Special Crime Prevention Unit testified about an operation on July 12, 2018. Following a call from his commander, Corporal Mohamed Buno, PW2 joined an assignment with Police Constable Kamau and Police Constable Driver Weru. They were briefed at the CID headquarters about two individuals, the appellants herein in Kirigiti village, Kiambu. Collaborating with the anti-narcotics team, they conducted surveillance and located the targeted house. Approaching it, they arrested Mungai, who shouted while they heard sounds inside the house. Breaking in, they arrested Wanjiru and recovered mobile phones and keys. The anti-narcotics team searched, and PW2 handed over the recovered items. The suspects were taken to different police stations, and PW2 later recorded his statement on July 21, 2018.

7. Corporal Mohamed Buno (PW3) of the Special Crime Prevention Unit testified that on July 12, 2018, they received instructions to search the houses of the appellants, and suspected drug dealers. Arriving in Kirigiti, they waited for the occupants to open their business. When informed that the premises were open, they approached door number one. The 2nd appellant was arrested as he came outside, and the 1st appellant was inside with suspicious packages, and was instructed to open the door. After a frisk search on the 2nd appellant, the anti-narcotics unit took over, conducted a search, and arrested both. The inventory was signed by witnesses, and the suspects were booked at Muthaiga police station. PW3 identified the inventory during his testimony.

8. Sergeant Hudson Migiri Tapukai (PW4), a crime scene officer, testified that on July 14, 2018, he was requested to document exhibits during weighing and sampling at the DCI headquarters. The exhibits, recovered at Kirigiti, were associated with the arrests of Anthony Mungai and the 1st appellant. Chief Inspector Tune and government analyst Catherine Murambi were present during the process. PW4 took 545 photographs, compiled in four bundles, and prepared certificates.

9. Chief Inspector Philip Langat (PW5), from the anti-narcotics unit, received a call from Corporal Kipkurui on July 14, 2018, informing him of the suspects' arrest with substances believed to be narcotic drugs. After sampling and spot testing indicated heroin, PW5 determined the weight as 115. 02 grams, valuing it at Ksh. 345,060/-. As a valuer, he relied on his 31 years of experience, including 18 years in the anti-narcotics unit. He prepared and signed a Valuation Certificate on August 15, 2018, maintaining the value even after government chemist analysis. The valuation set the price at Ksh. 3,000/- per gram of heroin.

10. Chief Inspector Agnes Tune (PW6) testified about a joint operation at the DCI headquarters on July 12, 2018, targeting drug traffickers. She, along with Corporal Geoffrey Kipkurui and PC Seurey from the anti-narcotics unit, and others from the Special Crime Prevention Unit, went to the Kirigiti area based on intelligence leading to PW 1’s house. In house number one, they found the first and second appellants. Upon entering, the house was filled with drug trafficking paraphernalia, including mathematics textbooks, masks, and a small electronic weighing scale. PC Seurey took photographs, and Corporal Kipkurui labelled and inventoried the items. They asked about the house's ownership, and John Muigai claimed to be the owner, renting it for about three months.

11. Inside, they found large sachets with 100 and 114 sachets, respectively. In the main bedroom, a blue mattress had 14 sachets and a creamish substance. PW6 conducted the weighing, totalling 115. 02 grams. After the search, Corporal Kipkurui prepared a search certificate and inventory, leading to the arrest of the appellants. On July 14, 2018, weighing and sampling occurred at the DCI headquarters, attended by the government analyst Catherine Murambi, PC Hillary Seurey, Corporal Geoffrey Kipkurui, Sergeant Hudson Migiri, and appellants. PW6 prepared a weighing certificate and Murambi's preliminary test confirmed heroin. Further analysis was then initiated.

12. Government analyst Catherine Sera Murambi, PW 7 sampled and analyzed 2154 sachets of a creamish powder at the DCI headquarters anti-narcotics unit, discovering the presence of heroin. She conducted a detailed analysis using Gas Chromatography and Ultra Violet Spectroscopy, revealing a 61% purity of diacetylmorphine in the samples, with the remaining 39% being a harmful cutting agent. Murambi labelled the sachets as Q78-20 of 2018 and prepared a report on 7/8/2018, testifying to witnessing the sachets' weighing during the process.

13. PW8, Derrick Kiprono, assigned to Crime Scene Investigation at DCI headquarters, testified receiving a sealed packet 'A' containing a photographic CD. The packet, signed by police constable Seurey and accompanied by a letter from the anti-narcotics unit, requested processing the CD for photographic prints. Kiprono processed the CD, producing thirty photographic enlargements and prints, presented as prosecution exhibits. He acknowledged receiving the exhibit memo from police constable Seurey, signing it, and subsequently processing the CD in the laboratory.

14. PW9, Police Constable Hillary Seurey, detailed a narcotics operation where they arrested suspects in Kiambu. Upon searching a house, they found various items including face masks, exercise books, a photo album, padlocks, sachets with creamish powder, and digital weighing machines. In the mini bedroom, they discovered multiple items such as scissors, knives, batteries, and Tanita weighing scales. Seurey testified about the inventory and search certificates prepared by Corporal Kipkurui. The substances found later confirmed as heroin, were weighed and sampled at DCI headquarters. Both appellants declined to sign. Corporal Kipkurui (PW10) corroborated the operation details, emphasizing the search and introduction process during the arrests.

15. PW10, Corporal Geoffrey Kipkurui, described recovering eleven new ruled exercise books and ninety-eight face masks from the sitting room. He found a padlock named Stella with four keys, one matching the padlock. A photo album with a suspect's photo was also retrieved. The search covered the entire house, aligning with PW9's testimony. Room three's search included a conversation with the landlady, PW 1, who identified the 1st appellant but not the 2nd appellant. An inventory of recovered items was prepared, and signed by witnesses including Chief Inspector Agnes Tune, PC Hillary Seurey, PC Jonathan Sankale, and Corporal Mohamed Buno. The appellants declined to sign, and the inventory was produced. The in-charge informed the suspects of prosecution exhibits during the search.

16. After the close of the prosecution's case, the appellants were found to have a case to answer and were put on their respective defences. The 1st appellant told the court that the first appellant person testified that he was arrested at Riabai shopping center, taken to an unknown house in Kirigiti, and forced to claim it was his. He denied ownership of any documents or exhibits presented, stating that the photo album did not belong to him. He claimed assault when refusing to accept the house's ownership. During cross-examination, he identified himself in one of the photos but maintained the album wasn't his. He stated living in his ailing mother's house in Rabai, and during the search, he was lying down and did not see PW 1.

17. The 2nd appellant told the court that the second appellant, in his testimony, asserted being a Mathare Village II resident involved in selling men's wear and ice cream. On 12/7/2018, he claimed to go to Gikomba for supplies and then deliver orders in Kiambu and Kirigiti. While near a stadium, a Subaru stopped, and people assaulted and arrested him, revealing guns in the vehicle. Taken to a house with police outside, he encountered two groups of officers, one questioning him and another questioning a man present. They asked him to sign a form (exhibit 5), but he refused without explanation. Arrested with Ksh. 400, mobile phones, ice cream sticks, vests, shirts, and coins, he mentioned an unfamiliar glass table with padlocks and keys. Later, at DCI headquarters, he was given documents to sign but declined. He stayed in Muthaiga police station until 16/7/2018 when he was brought to court, stating discrepancies in the indicated weights on the charge sheet.

Analysis and determination. 18. The appellants challenged the totality of the prosecution’s evidence against which he was convicted. He argued that the ingredients of the offence were not proved beyond reasonable doubt. In addition, that the prosecution’s case contained contradictions which should have resulted in their acquittal.

19. This court has re-evaluated the evidence adduced before the trial court, the Appellant’s grounds of appeal as well as the rival parties’ submission. Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act provides as follows;“Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable:-(a)in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;”

20. 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…”

21. 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.”

22. In this particular case, the prosecution contended that the appellants were involved in the trafficking of a narcotic substance. On July 12, 2018, police officers conducted an operation at the appellants premises where they were found in possession of substances suspected to be narcotic drugs. PW 1, their landlord confirmed in her evidence having let the premises to them. During the ordeal, she witnessed the search on the premises. PW 6, Police Constable Jonathan Sankale, and Corporal Mohamed Buno from the Special Crime Prevention Unit conducted the operation. Sergeant Hudson Migiri Tapukai documented exhibits, and Chief Inspector Philip Langat determined the heroin's weight. PW 6, testified about the joint operation, that revealed the presence of drug-related paraphernalia in the house. Corporal Geoffrey Kipkurui prepared an inventory, and the Government Analyst Catherine Murambi confirmed the presence of heroin in the substance that was recovered. Derrick Kiprono processed a CD with photographic evidence. Police Constable Hillary Seurey and Corporal Kipkurui detailed the search that was conducted in the premises and that both appellants declined to sign the documents. The evidence that was recovered includes seized items, operation details, heroin confirmation, and photographic evidence linking the appellants to drug trafficking.

23. The chain of custody for the substances recovered in the case against the appellants is well documented through the testimonies of various witnesses. The investigating officer detailed the custody of seized substances through the inventory prepared and introduced the Notice of Intention to Tender Records in Evidence, along with several items recovered from the appellants as evidence. This sequence of testimonies establishes a clear and continuous chain of custody for the substances recovered from the appellants premises. The chain of custody of the exhibits was clearly explained by the prosecution witnesses. It is worth noting that the appellants never raised this issue during cross examination of the prosecution witnesses.

24. On whether the substance recovered was a narcotic or psychotropic substance, PW6, a government analyst, testified that she conducted a preliminary test of the substance recovered from the appellants premises. The test confirmed that the substance contained heroin. She conducted a sampling exercise and determined the purity of diacetylmorphine in the creamish powder. The prosecution adduced evidence that established that the substance found in the appellants possession was a narcotic substance within the meaning ascribed to the term by Section 2(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act and the 1st Schedule thereof.

25. In their respective defences, the appellants denied being in the premises at the time of their arrest or being involved in any drug trafficking. In addition, they denied being tenants to PW 1 who testified to have rented the premises to them. The trial court considered their defence and found it to be not credible. In view of the foregoing, I find that the 1st and 2nd appellant’s defences did not dislodge the cogent evidence adduced by the prosecution. In my view, the appellants defences were properly dismissed by the trial court as an afterthought aimed at exonerating them from the offence.

26. Having carefully re-evaluated the evidence of the prosecution witnesses, it is my finding that the evidence was well corroborated and there is no doubt in my mind that the appellants were arrested with narcotic substances namely, heroin, which was recovered in their premises.

27. The said narcotic drugs were duly weighed and found to be the value of a substance (heroin) weighing 115. 02 grams, with a market value of Ksh. 345,060. All these factors put together convince this court that the prosecution duly discharged its burden herein and proved beyond any reasonable doubt that the appellants trafficked narcotics drugs. I agree with the trial magistrate on this finding.

28. On the sentence, the appellants were each convicted to serve 10 years imprisonment. In addition, they were each fined to pay a fine of Kshs. 500,000 in default to serve 12 months imprisonment. The appellants argued that their sentence was harsh and excessive.

29. From the sentencing proceedings, the trial court considered their mitigation and that they were first offenders. The sentences meted out were therefore within the law.

30. The upshot of the above is that the appeal against conviction and sentence is dismissed for lacking in merit.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 1ST DAY OF DECEMBER 2023. ..............................D. KAVEDZAJUDGEIn the presence of:Mr. Kiragu h/b for Mr. Mutuma for the Respondent.Appellant present on the platform.Joy/ Naomi Court Assistants