[2022] KEHC 11301 (KLR)

Karinta & another v Republic (Criminal Appeal E160 of 2021) [2022] KEHC 11301 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11301 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E160 of 2021

TW Cherere, J

May 12, 2022

Between

James Muthiora alias Karinta

1st Appellant

Fridah Karimi

2nd Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Criminal Case Number 2171 of 2018 in the Chief Magistrate’s Court at Meru by Hon. T.M.Mwangi (SPM) on 01. 10. 2021)

Judgment

1. James Muthioraalias Karinta and Fridah Karimi(1st and 2nd Appellants respectively) were jointly charged in the 1st count with 4 others who were acquitted. Appellants jointly faced a 2nd count. The particulars of the charges were as follows:Count 1Trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 in that on 01. 11. 2018 at Kooje area in Meru township, Imenti North Sub-County within Meru County jointly trafficked by storing, selling and distributing narcotic drugs namely cannabis (Bhang) to with 103 kgs with street value of Kshs. 3,090,000/- in contravention of the said ActCount 2Being in possession of utensils used in connection with the preparation of narcotic drugs contrary to section 5 (1)(d) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 in that on 01. 11. 2018 at Kooje area in Meru township, Imenti North Sub-County within Meru County jointly found with weighing scales Ramtons s/no. 11084, Aston Meyers Model No. 7760, Dahongying ACS-40 believed to be used in weighing cannabis (Bhang)

2. After the hearing, the other 3 Accused persons were acquitted whereas the Appellants were acquitted of count 2 and convicted of count 1. Upon conviction, each of the Appellants was fined Kshs. 4,635,000/- in default 5 years sentence and in addition each to serve a life sentence.

The prosecution’s case 3. The prosecution called seven (7) witnesses in support of the charges. PW1 CPL Nyangi recalled that on 01. 11. 2018, he accompanied his colleagues to a house in Kooje area where they had received information that there were people involved in trafficking of narcotics (Bhang). It was his evidence that upon entering the house, they found Appellants and others and upon searching one of the bedrooms discovered a 15 by 3 feet hole in a wardrobe and in his presence together with CI Ojwang, Sgt Sindani, and PC Soita, Sgt Waphungu, Timothy Kinoti and Josphat Ekeno used a ladder to climb into the hole from where they retrieved some plant material suspected to be bhang. The witness stated that they recovered the following items from Appellants’ house:i.278 stones of bhang parked in gunny bagsii.102 rolls of bhangiii.Brooms of dry plant material packed in 3 sacks of 50kgs eachiv.21 loose brooms of dry plant material wrapped in newspapersv.34 boxes with 50 small packs each holding 60 white paper wrappersvi.Bundle of broomsvii.15 boxes with 50 small packs each holding 50 Kingmas rizla paperviii.410 stones with 50 small rolls eachix.Cash Kshs. 512,480/-x.Title deedsxi.Phonesxii.Flash disk

4. The witness stated that he prepared an inventory of all the recoveries. The plant materials were weighed and the measurements showed they were 103kgs from which samples thereof were escorted to government Chemists for analysis.

5. In cross-examination, the witness stated that the inventory shows that they recovered 278 stones of plant material which when counted in court was not 278 but 283. He also confirmed that the same inventory shows that they recovered Kshs. 512,480/- but upon being counted in court amounted to Kshs. 523,310/-.

6. PW2 Sgt Benson Sindani, PW3 PC Soita and PW4 CI Robert Ojwang testified that they were with PW1 during the search of Appellants’ house, the recovery and arrest of Appellants. It was also their evidence that the plant material was recovered from a hole in one of the bedrooms in Appellants‘ house. According to PW2, a police officer he did not name entered the hole and made the recovery. According to PW3, Timothy Kinoti and Josphat Ekeno that retrieved the exhibits from the hole whereas according to PW4, it was PW1 CPL Nyangi that entered the hole and made the recovery.

Defence case 7. Both Appellants denied the offences. The trial court after considering the evidence found the prosecution case proved, convicted and fined each one of them Kshs. 4,635,000/- in default 5 years sentence and in addition each to serve a life sentence.

The Appeal 8. The conviction and sentences provoked this appeal and on October 5, 2021, Appellants filed a joint Petition of Appeal based on 16 grounds which I have summarized as follows:i.The court convicted them on the basis of evidence by PW1 to PW4 which was contradictoryii.The learned trial magistrate did not find out who had exclusive control of the house where it is alleged drugs were traffickediii.The Prosecution did not produce a valuation reportiv.The learned trial magistrate rejected the scene visit report that stated that there was no hole in Appellants’ housev.The learned trial magistrate shifted the burden to prove there was no hole in the house to Appellants when the Prosecution did not produce photographic evidence to prove the presence of the holevi.The inventory was signed by police officers who were neither at the scene of crime nor testifiedvii.The Appellants’ defences were not given due considerationviii.The sentence was extremely excessive Determination

9. I have considered the grounds of appeal, the evidence, the submissions and authorities relied upon.

10. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 had this to say about the duty of the first appellate court: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”15. The Court of Appeal appreciated the holding in the foregoing decisions and in Kiilu &another vs. Republic [2005]1 KLR 174, stated that:1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.

11. I have considered the trial court’s record, the grounds of appeal and submissions for and against the appeal and I have deduced the issues for determination to be:1. Whether there were contradictions in the prosecution case2. Whether there were contradictions affected the credibility of the evidence3. Whether the Prosecution proved their case beyond reasonable doubt?4. Whether sentence meted out was harsh and excessive.

12. Whereas Appellants do not deny that they were arrested from their house, their counsel submitted on the first ground that there were material contradictions in the evidence by PW1, PW2 PW3 and PW4 concerning the existence of a hole from where the exhibits were allegedly recovered and the identity of the officer/officers that actually recovered the exhibits from the hole.

13. The jurisdiction of this court in an appeal such as this was well stated in the often cited case of Okeno vs. Republic [1972] EA 32 that the court should make allowance for the fact that the trial Court had the advantage of hearing and seeing the witnesses.

14. In Mkendeshwa v Republic [2002] 1 KLR 461, the Court of Appeal stated that;“In criminal cases, the burden is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and generally the accused assumes no legal burden of establishing his innocence. However, in certain limited cases the law places a burden on the accused to explain matters which are peculiarly within his own personal knowledge.”

15. With those parameters in mind, I have on the first issue considered whether the evidence relied upon was contradictory. It is without doubt that the testimonies by PW1 to PW4 were central to the prosecution case. Not only did they testify that they were eye witnesses, but some are alleged to have played a crucial role in the actual recovery of the exhibits in issue thereby interacting throughout with the chain of events.

16. After the testimony of the PW1 to PW4, the trial court on 10th February, 2021 visited the crime scene and noted that PW1 and PW3 pointed to a corner of the bedroom where the recovery was made that was different from the one identified by PW2. The court also noted that there was indeed a wooden wardrobe, and that the bedroom had a concrete floor with no evidence that a hole ever existed in that bedroom.

17. The prosecution evidence is that there was a hole in Appellant’s house from which the narcotics were recovered. Appellants and their witnesses denied that there was a hole in their house and also denied that any narcotics were recovered from their house. PW1 CPL Nyangi who was the investigating officer denied retrieving the narcotics from a hole as stated by PW4. PW1 stated that the retrieval of the narcotics from the hole was by Sgt Wepuphulu who did not testify. Timothy Kinoti and Josphat Ekeno who PW3 said retrieved the narcotics from the hole denied that there was a hole in Appellants’ house or having been involved in the retrieval from any hole.

18. From the evidence of the prosecution witnesses, it is apparent that it is not clear who between PW1 CPL Nyangi, Sgt Wepuphulu, Timothy Kinoti and Josphat Ekeno retrieved the narcotics from a hole.

19. The scene visit report discloses without a doubt that the trial court rightly noted the discrepancies concerning the actual position of the hole and also noted that there was no sign that a hole ever existed on the concrete floor in the bedroom that was identified by the witnesses.

20. On its part, the trial court resolved the matter by stating that;(22)Notwithstanding;The contradiction in the evidence of PW1 and PW2.

That no hole was found in the bedroom

That one witness pointed at a different spot in the bedroom, from the others as, the place where the hole was.

I find that truly dry materials were recovered from a hole inside DW5’s place Whether the bhang was recovered from a hole or not, the hard fact was that a huge amount of dry material was recovered from inside DW1’s house. The above cited contradictions by the witnesses can be explained that the search was conducted by many officers and bearing in mind that the geography of DW5’s house not familiar to any of the search party and the fact that the search was extensive inside every room of the main house. It is impossible to have expected all witnesses to give identical evidence in graphic details surrounding the recovery of the suspected bhang

21. Concerning the contradiction relating to the issue of existence of a hole from where the narcotics were recovered, the trial magistrate stated as follows:(23)The fact that this court did not see a hole below the wardrobe during the scene visit is a matter that could only be explained by the DW4 and DW5.

22. By highlighting the inconsistencies in the testimonies of PW1 to PW4, the Appellants were casting aspersions on the credibility of the said witnesses. What this court needs to ask is whether these inconsistencies impeached their credibility.

23. In the case of Richard Munene v Republic [2018] eKLR, the Court of Appeal stated as follows:“We begin with the submissions that the prosecution evidence was contradictory. In a criminal trial, the accused person enjoys a presumption of innocence because the burden of proving the charges is on the prosecution, and to do so beyond any reasonable doubt. Secondly in an adversarial system the purpose of evidentiary rules is to assist the court in establishing the truth and in the process provide protection to the accused in respect to his right to a fair trial. As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.”

24. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.

25. In this appeal, the learned trial magistrate appreciated that there were indeed discrepancies in the testimonies of the prosecution witness. The learned trial magistrate found and correctly so, that the identification of the exact position of the hole where the recovery was made is a minor contradiction that did not require graphic details.

26. Additional, the learned trial magistrate rightly appreciated that no duty or burden is imposed on the accused to prove his innocence but that there are instances when the law places a duty on the accused to explain certain facts particularly those peculiarly within his own knowledge. The judgement of the trial court discloses that the learned trial magistrate was well aware of the cardinal principle in criminal cases that the court has a duty to acquit an accused person if the evidence given by the prosecution and/or the defence creates a reasonable doubt.

27. Flowing from the finding by the learned trial magistrate that there were contradictions in the prosecution case, the issue then is whether the Prosecution can be said to have proved beyond reasonable doubt.

28. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:“With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

29. Therefore, each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that clearly it will be of little effect and certainly does not necessarily mean that the witness is lying or that his testimony cannot be relied on.

30. Whereas I appreciate that there were minor discrepancies in the evidence of the witnesses concerning the actual position of the hole, I find as did the learned trial magistrate that the Prosecution did not prove that there was any sign that a hole ever existed on the concrete floor in the bedroom that was identified by the witnesses.

31. Having so found, I find that the learned trial magistrate misapplied section 111 of the Penal code and erred in shifting the burden to prove that there was no hole in the Appellants’ house even though the prosecution case concerning existence of the hole had glaring discrepancies discrediting its credibility.

32. In the final sentence of paragraph 23 of the trial court’s judgment, the learned trial magistrate stated as follows:“……..They (referring to the Appellants) and they alone are the owners of that house, the period of time between 1/11/2018, when the bhang was recovered from a hole, and the date of scene visit was a long enough period of time to tamper with the evidence.

33. The court record reveals that throughout the trial, the prosecution did not allude to or tender evidence that there was tampering with the scene of crime. In the case of Burunyi &anor vs Uganda Cr. Appeal No. 1968 EA 123, SirUdo Udomathe then CJ held:“It is not the duty of the court to stage-manage cases for the prosecution nor is it the duty of the court to endeavor to make a case against an accused where there is none. In a criminal case, the court cannot enter into the arena. The only duty of the court is to hold the scale to see that justice is done according to law on the evidence before it.”

34. From the foregoing, I find that the trial magistrate erred when he unnecessarily strayed into the arena and attempted to make a case for the Prosecution when none had been proved. Instead of trying to cover up the gaps created in the prosecution case, the learned trial magistrate should have had the moral courage to resolve the obvious contradictions, discrepancies and inconsistencies in the prosecution case in favour of the Appellants as by law required.

35. I have considered whether the signing of the inventory form per se is prove of recovery. It is the prosecution case that the inventory was signed at the scene of recovery. On the other hand, the Appellants’ case is that they signed at the Police Station a day after their arrest and that it was at that point that they saw the plant material. Having found there is no evidence that the narcotics were recovered from Appellant’s house, I find that the prosecution case does not form a chain so complete to suggest that the inventory per se is prove of recovery.

36. Concerning the sentences, Appellants were each sentenced to a fine of Kshs. 4,635,000 in default to serve 5 years’ imprisonment and in addition to life in prison. Appellants content that the trial magistrate misdirected himself by holding that the life sentence was mandatory.

37. Section 4(a) provides the penalty for trafficking in narcotic drugs or psychotropic substance as follows:“Any person who traffics 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.”

38. The trial magistrate held that in the recent decision of the Supreme Court, I would conclude he was referring to the Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR, he was without discretion to explore an alternative sentence. It is manifest from the judgment of the trial court that the trial magistrate understood the phrase “shall be liable” in section 4(a) of the Act as prescribing both a mandatory and minimum sentence for the offence of trafficking of cannabis sativa. So was he in error?

39. Section 26 of the Penal Code gives guidelines on imprisonment(2)Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term.(3)A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or in substitution for imprisonment:Provided that—i.where the law concerned provides for a minimum sentence of imprisonment, a fine shall not be substituted for imprisonment

40. In Daniel Kyalo MuemavRepublic [2009] eKLR, the Court of Appeal held as follows;“………Thirdly, the preamble to the Penal Code Act does not show that one of the purposes of the Act is to provide for mandatory sentences. Indeed, for the more serious offence of trafficking in narcotic or psychotropic substances in Section 4, for example, the Parliament uses the phrase – “shall be guilty of an offence and liable” – which phrase does not import a mandatory sentence. That is why in Kolongei vs. Republic [2005] 1 KLR 7, the appellant who was convicted of trafficking in 27. 8 Kgs. of heroin was sentenced to 18 years’ imprisonment plus a fine and not to the prescribed life imprisonment plus a fine (see also Gathara vs. Republic [2005] 2 KLR 58 where the appellant was sentence to 10 years’ imprisonment plus a fine for trafficking in eleven (11) bags of cannabis sativa.”

41. In the more recent decision of Antony Mbithi Kasyula v Republic [2015] eKLR, the Court of Appeal upheld its earlier decision in Kingsley Chukwu v R Criminal Appeal No. 259 of 2006 where it had held that; -“…the use of the word “liable” in section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control)Act merely gives a likely maximum sentence thereby allowing a measure of discretion to the trial court in imposing sentence with the maximum limit being indicated. It should be noted that sentencing is an exercise of judicial discretion, and therefore provisions which provide for mandatory sentence compromise this discretion, and are the exception rather than the rule., thus where applicable a mandatory sentence must be expressed in clear and ambiguous terms…In the case of section 4(a) of the Narcotic Drugs & Psychotropic Substance (Control) Act, the provision does not contain such clear and ambiguous language with regard to the mandatory sentence. In our view this leaves room for judicial discretion and we would be reluctant to adopt an interpretation that would defeat or muzzle the exercise of such judicial discretion. Needless to state that we are still of the same view and do therefore find that the learned Judge erred in enhancing the sentence on the basis that the sentence provided in the Act is mandatory.”

42. It is thus my finding that the trial magistrate misdirected himself when he found that the sentence prescribed by section 4(a) is mandatory.

43. In the case law of Caroline Auma Majabu v Republic[2014] eKLR, that was cited by the Appellants, the court held as follows at paragraph 16 of its judgement;“Given the gravity of the sentence provided for trafficking, it would appear to us that the sentence for trafficking was a maximum sentence intended for drug barons and serious drug dealers dealing with drug worth thousands if not millions of shilling ….”.

44. I note that the Appellants were charged with trafficking in a large quantity of narcotics being 103 Kgs worthy of 3 million shillings could not have been for consumption but rather for distribution and sale.

45. Had the prosecution case been proved beyond reasonable doubt, I would have upheld the conviction and considering appellants’ mitigation and the fact that they are first offender set aside sentences on the ground that they were harsh and excessive and substituted them accordingly.

46. From the foregoing analysis, I have come to the conclusion that this appeal has merit and it is allowed. The conviction is quashed, the sentences set aside and it is ordered that appellants be set at liberty unless otherwise lawfully held.

DELIVERED AT MERU THIS 12th DAY OF May 2022T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellants - PresentFor Appellants - Mr. KariukiFor the State - Ms. Mwaniki