[2020] KEHC 1982 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT CRIMINAL APPEAL NO. 170 OF 2019

LILIAN NYATUMBA.......................................APPELLANT

VERSUS

REPUBLIC.....................................................RESPONDENT

(Appeal from the original conviction and sentence in Criminal Case No. 40 of 2017 at SPM’s Court at JKIA Law Courts by Honourable L. Onyina on the 22nd day of May, 2018)

JUDGMENT

1. The appellant NYATUMBA LILIAN JENIPHER AKOTH was charged, tried and convicted of the offence of trafficking in Narcotic Drugs contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. Upon conviction she was sentenced to pay a fine of Kshs. 83,520,000 in default one year imprisonment under Section 28(2) of Penal Code, in addition to imprisonment of thirty (30) years.

2. Being dissatisfied with the said conviction and sentence she filed this appeal and raised the following grounds of appeal: -

i. That the learned trial magistrate erred in fact by failing to find that there was no sufficient evidence to sustain a conviction.

ii. That the learned trial magistrate erred in fact and law by failing to find that there was no evidence to establish the ingredients of the charge.

iii. That the learned trial magistrate erred in fact and law in that the evidence was at variance and there was disharmony and discordant voices.

iv. That the learned trial magistrate erred in fact and law by finding that the prosecution proved their case beyond reasonable doubt whereas the prosecution had not discharged there burden in law.

v. That the learned trial magistrate erred in fact and law by failing to find that the trial offended and contravened the Appellant’s constitutional rights to a fair trial.

vi. That the learned trial magistrate erred in fact and law in upholding the prosecution witnesses’ testimonies which prima facie was incredible whilst proceeding on extraneous considerations which were not before the court to disregard the defence evidence which was verifiable.

vii. That the learned trial magistrate erred in fact and law by failing to find that the exhibits tendered by the prosecution failed to be of any evidentiary value to the prosecution’s case.

viii. That the learned trial magistrate erred in fact and law in convicting the Appellant while the prosecution did not satisfy their burden of proving their case beyond reasonable doubt.

ix. That the learned trial magistrate erred in fact and law by imposing a harsh and untenable sentence on the appellant.

3. She therefore sought that the appeal be allowed, the conviction and sentence set aside.

4. When the appeal came up for hearing before me, Mr. Swaka appeared for the appellant and made oral submissions in support of the appeal, while Mr. Momanyi appeared for the State and made oral submissions to oppose the appeal.

SUBMISSIONS

5. It was submitted by Mr. Swaka, that the prosecution did not prove their case beyond reasonable doubt, as there was no “mens rea” and “actus reus” to form any offence and the conviction was unsafe as the court only relied on the CCTV footage within the airport whilst the appellant was handed the luggage as she proceeded to the airport and if the court had looked at the totality of the CCTV footage, it would have realized that the appellant was innocent. Further, that the appellant gave the police two names of the persons who gave her the luggage, Jasmine and Habb, but the police did not investigate this line; that the suit case did not belong to the appellant and she explained how it came to her possession outside Terminal 1C and as such, the footage produced in court was not conclusive and had it been fully produced, the court would have reached a different verdict.

6. That the prosecution case was inconsistent and raised doubt given to the benefit of which should have been given to the appellant. It was submitted further that the evidence of PW1, PW2, PW5 and PW6 with regard to the spot test on the drug was inconsistent as each gave a different account on who carried out the spot test and in addition between P1 and PW2, as to which one of them was present when the appellant was asked to open the flour and what they said the substance was or what it smelt like, variation of the packets with regard to how many they were and how many were opened and how many had heroine.

7. That the whole handling of the appellant when she was arrested violated her rights as she was never given the benefit of having an Advocate or friend, her rights were never explained to her, the officers took advantage of her lack of knowledge to bring charges against her and made her sign documents which she did not understand.

8. That by the time she was charged in court, the result of the Government analysis had not been availed, which action demonstrated malice and no documents were filed in court to confirm the findings, which should have been shared with the appellant.

9. That the defence of the appellant was never shaken and if the same was considered, the court would have reached a different decision, as she gave an explanation of how the luggage came into her possession.

10. That the sentence was extremely harsh, yet the purpose of sentence is to correct an offender and not be punitive, which destroys the purpose it was meant to serve and further, before conviction, the appellant was blessed with a child with whom she had to go into custody; that she had already served three years and prayed to the court that even if the conviction is sustained, this being a court based on human rights and can alter sentences based on the same, it should find the sentence extreme. It was submitted further that there were several authorities that gives discretion to judicial officers while sentencing on the offences of drugs, as such, the court can alter the sentence and deem the period served so far sufficient and may be guided by the Muruatetu case which set out what the court had to consider.

11. In response to the submissions by the prosecution, it was submitted by the Appellant that PW1 confirmed that the appellant did not sign the document on the testing done, and further that PW2 conceded that the subject bag did not have any tag on it which could have identified it with the appellant. It was contended that Pw7 did not witness what they considered primary scene, PW8 only relied on the words of the analyst to identify the substance while PW9 did not identify the drugs at the time of arrest. It was further contended that PW10 could not identify the appellant while PW11 did not identify the substance. The court was therefore urged to find that the conviction was not safe.

12. On behalf of the prosecution Mr. Momanyi submitted that the appellant was charged with the offence of trafficking and was travelling from Sri Lanka to Benin carrying 9280 grams of heroin whose value was Kshs. 29 million, in ten (10) packets of instant porridge flour on 10th February, 2014, which suit case was in the constrictive possession of the appellant and was intercepted at Terminal 1C at JKIA. This was witnessed by PW1 who was the security on duty and noticed it on the X-ray monitor and PW2 who was on guard. They informed the officer at JKIA to take up the matter.

13. The prosecution stated that PW5, an officer at Anti-Narcotic and PW6 took up the matter; that PW6 conducted a spot check on the substance using the heroine kit, which confirmed the same by turning green.

14. That the government analyst, PW9, went to the scene and took note of the samples and prepared PExh. no. 16 to the effect that it was heroine and the samples were produced in court; the events were covered by PW7, a gazette officer who took pictures of the event.

15. The prosecution submitted that PW10, the CCTV administrator produced the CCTV footage of the event at Terminal 1C where the appellant was arrested, which covered how the appellant identified the bag and the substance and that the minor inconsistencies did not compromise the case, since the CCTV covered the event, as such, the prosecution case was cogent to what transpired.

16. On the issue of violation of the appellant’s human rights, the prosecution submitted that none was violated and after the investigations, she was taken to court and represented by an Advocate. Upon conviction, her mitigation was considered and dismissed and she was fine three (3) times the value as per the Act; that the sentence was fair but the court had discretion on the same.

17. This being a first appeal the court is legally required to re-evaluate the evidence tendered before the trial court and to come to its own conclusion, though taking into account the fact that I did not have the advantage of seeing and hearing witnesses as was stated in OKENO v REPUBLIC [1972] EA 32:-

“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (SHANTILAL M RUWALA v R [1957] EA 570). 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; it must make its own findings and draw its own 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, see Peters v Sunday Post [1958] EA 424. ”

PROCEEDINGS

18. The prosecution case was that on 10/2/2017 while PW1 SUSAN NJERI NGUGI a Security Officer at JKIA was screaming passengers and luggage at Terminal 1C, she noted a bag whose contents were not very clear and that the same was placed upright instead of lying down as required. She notified her colleagues and when the appellant came over, PW2 Wycliffe Oloo Ndalo asked her to open the bag, wherein they noticed some assorted instant porridge flour, some sweats and clothes. She noticed that the appellant was shaking and uneasy. When asked where she was taking the content, she indicated that they were not hers, but that she was sent by a friend from Sri-Lanka to drop it at Cotonou airport.

19. PW2 asked the appellant why there was difference in the texture of the substance and in response, she stated that the soft ones were chocolate flavoured, but when he looked around the bag, he found another one that was chocolate flavoured but with a different texture. He therefore told the appellant to unwrap them for testing. In cross examination, he stated that a bag would be identified as belonging to a passenger when one goes to pick it up even though it did not have a tag to identify it with the applicant.

20. PW4 HESBON ONYANGO OCHIENG a security supervisor with KAA, was informed and at the security supervision with KAA was informed and at the search table, found packets of flour, some of which were opened and was told by the warden that they were not sure of its content. When the appellant was asked what they were, she stated that they were porridge flour, which she was taking to her mother. PW5 CORPORAL FAITH NASERIAN KISHON was present when preliminary test was conducted on the substance and organized for the same to be analysed by the Government analyst which was done. They proceeded with the appellant on the estate where she had said that she was staying, but upon arrival, she told them that she had forgotten the house.

21. PW6 PC KINOTIprepared the inventory of the recovered items, which the appellant refused to sign and was present when the items were weighed and sampled. It was his evidence that the appellant was charged before the items were confirmed by the Government chemist, but based on the preliminary report which showed that it was heroine.

22. PW7 PC GAUDENCIA OLWENYa scene of crime officer processed the scene and confirmed that the items tested positive for narcotic substance and took several photographs thereof. PW8 CI MARTIN NDEGWA interrogated the appellant who told them that she was travelling to Cotonou aboard Kenya Airways. He confirmed that the substance pointed to heroine based on presumptive test. PW9 DENNIS OWINO ONYANGO an analyst with the Government Chemist prepared a sampling certificate of the items in the presence of the appellant. He further carried out a preliminary test, which was indicative of a narcotic drug and his analyst certified that it was heroine. He confirmed having not identified the purity of the substance.

23. PW10 TEDDY MUGAMBI KIARAa CCTV Administrator from KAA received a request on 21/2/2017 in respect of the occurrence on 10/2/2017 at Terminal 1C screening check point which he retrieved and played in court and was able to identify the appellant. PW11 JOSHUA OGOLA OKALI a gazetted officer, assessed the value of the drugs at Kshs.27,840,000/- and prepared a certificate of valuation. It was his evidence that the purity level should not have affected the value that he gave.

24. PW12 CPL FATUMA SHAMEfound the appellant having been arrested while checking in at Terminal 1C to board Rwanda Air to Cotonou and was instructed to take her to Kayole Nazra Estate where they were supposed to conduct further search, but on arrival she stated that she could not locate the house. She later on took over investigations, contacted the valuation officer and further that the substance was tested and confirmed to be heroine.

25. When put on her defence, the appellant gave a sworn statement and stated that on 10/2/2017 she was travelling to go and visit her boyfriend in Cotonou Benin, who had called her a day before she travelled and informed her that, there was a friend of his, whom he was working with in South Sudan, called Aba, who had a cousin based in Nairobi called YASHIN PISKIE,who had some infant porridge, that she was supposed to give her to take to Abba, which she agreed to do. Since she was travelling with 11. 00 a.m. flight, they agreed to meet at the airport, where she was handed over the subject bag. It was her evidence that she had her own two bags. They decided to weigh the blue bag, so that if there was any extra weight, the owner who had come with it to the Airport could pay for it.

26. It was at that point when she was asked to open the bag, which she did and was told that they suspected that she was carrying narcotic drugs, to which she replied that the bag belonged to the lady who had by that time disappeared. It was her evidence that the bag did not have a tag to show that it was hers. She then gave the security guys the telephone contact of Yasmin and that she tried to communicate with her to tell Aba that she had been arrested. It was her evidence that during that time she was not allowed to communicate with anybody.

27. In cross examination, she stated that she received the subject bag at the shade near the entrance from the woman and a driver. She confirmed that she was seen on the CCTV footage pushing the bag and that she did not open the bag when she received it.

28. In convicting the Appellant the trial court had this to say:-

“There is no dispute that the accused person had the bag that was containing the substance. The bag (Pexh 1) was taken through the screening machine. The electronic evidence produced by PW10 as prosecution exhibits 18 and 20shows clearly what happened and agrees with the testimonies of PW1, PW2 and PW4 who were KAA officers on duty at the time. Indeed the accused person appears captured in the video cameras pushing the trolley and there is nobody assisting her like she said in her testimony that a driver pulled the trolley up to the screening point where the driver and Yasmin were told that they could not pass. The accused person is clearly alone pushing the trolley and her demeanour after she was intercepted, as shown in the footage and her explanation to PW2 of the differences in textures of the flour, is clear evidence that she knew what she was carrying. My holistic evaluation of the evidence on record leads me to inevitable conclusion that the accused person gave false testimony in her defence. Indeed, if the issue of Yasmin was not an afterthought to get out of a tight situation, the same would have featured during cross examination of even one of the witnesses who interacted with her after the interception.”

ANALYSIS AND DETERMINATION

29. From the record of proceedings, the Memorandum of Appeal and submissions herein, I have identified the following issues for determination

a. Whether the prosecution case was proved beyond reasonable doubt that the Appellant was trafficking

b. Whether the sentence given to the appellant was excessive

c. What order should the court give.

30. On proof of the prosecution case; the appellant was charged with trafficking narcotic drugs which is defined in Section 2(1) of the Narcotic Drugs and Psychotropic Substances Control Act to mean: -

“the importation, exportation, sale, 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…”

31. From the evidence on record, the appellant was travelling out of the country when she was intercepted. She had in possession and custody the subject bag, which had the substances which turned out on examination to be heroine. In her defence she stated that the bag was not hers, but one of the elements of the offence of trafficking is conveyancing and delivery. It is clear from her defence and the evidence before the trial court that she was conveyancing or delivering the heroine to Benin and the drugs were found in her possession, as when she took the police to the house where the alleged owner of the items were, the evidence on record which remained unchallenged was that she could not remember the location of the house. It is clear that she knew what she had in her possession and that is why the issue of the house was brought up.

32. The prosecution adduced evidence which established that the substance found in the Appellant’s possession was a psychotropic substance, heroin, within the meaning ascribed to it by Section 2(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act and the 2nd Schedule thereof. This confirmation was contained in the evidence of PW9 who analyzed the substance found in the appellant’s possession.

33. The Appellant in her submissions, raised the issue of inconsistencies on the testimonies of the prosecution witnesses, upon re-evaluation of the evidence tendered, I am satisfied that any inconsistencies on the prosecution case were of minor nature, like when the bag was opened, who had the bag and whether the Appellant was travelling with air Rwanda or Kenya airways, were of minor nature which did not go to the root of the prosecution and the trial court rightly stated that the CCTV footage clearly showed what happened. The failure to produce the CCTV footage of the entrance area of the Terminal 1C would not have changed the prosecution case in view of the Appellant’s evidence in her defence.

34. The Appellant also raised the issues of violation of her constitution rights, in that she was not given the benefit of having an Advocates or a friend at the time of arrest and that she was made to sign documents without understanding what they were, from the evidence on record, the appellant did not sign any document, further no confessional statement was recorded from her, neither did she allege that she was intimidated by the investigating officers on arrest, neither is there any record to show that the Appellant asked for and was denied the right to have an Advocates present.

35. Even if her rights were violated which, I have found were not, the same cannot vitiate the trial, which was lawfully conducted by a court properly constituted. Further the appellant did not raise the issue of violation of her constitutional rights before the trial court and her submissions herein amount to raising fresh issues on appeal. Be that as it may, the Appellant still retains a right to seek compensation for any violation of her rights if any as was stated in the case of GITOBU IMANYARA & 2 OTHERS v A.G. Civil Appeal No. 98 of 2012 [2016] eKLR.

“It seems to us that an award of damages from constitutional violation of an individual’s right by State or the Government are reliefs under Public Law remedies within the discretion of a trial court…..

As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case.”

36. It therefore follows that the prosecution case against the appellant who was positively identified as the one who had the control and possession of the bag, where the heroine was recovered, which substance was assessed and confirmed to be narcotic drug, within the meaning of the Act was proved beyond any reasonable doubt and therefore her conviction was safe and free from error. I therefore find no merit on the appellant’s appeal on conviction which I hereby dismiss.

37. The issue of the purity of the substance which was raised by the appellant is only relevant on the sentence, as was stated by the Court of Appeal in KABIBI KALUME KATSUI v REPUBLIC [2015] eKLR:-

“The law is clear on the offence of trafficking, the quantity of the drugs and its value only goes to the consideration to be given in sentencing and not on the gravity of the offence itself.”

38. In sentencing the Appellant, the trial court held that the law provides for sentences of a fine of three times the value of the drugs or Kshs. 1 million, whichever is greater and a further sentence of life imprisonment, that this was a composite sentence in the circumstances, under Section 4 of the Narcotic Drugs and Psychotropic Substances (Control) Act. In this regard, the Court of Appeal in KABIBI KALUME KATSUI V REPUBLIC [2015] eKLR (supra)cited the case of CAROLYNE AUMA MAJABU V REPUBLIC [2014] eKLR where it was held that: -

“[12] Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, sets out the penalty for trafficking in the following terms ...

...Any person who trafficks in any 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 …, and in addition, to imprisonment for life”

[13] In our view, the word “shall” is used in relation to the guilt offender and the word used in relation to the sentence is “liable”. The Concise Oxford English Dictionary 12th Edition defines the word “liable” as

(i) Responsible by law, legally answerable, (liable to) Subject by law to;

(ii) (Liable to do something) likely to do something

(iii) (Liable to) likely to experience (something undesirable) Blacks law Dictionary defines “liable” as Responsible or answerable in law; legally obligated Subject to or likely to incur (a fine, penalty etc.)

[14] Applying the above definition, the use of the word “liable” in section 4(a) of Narcotic Drugs and Psychotropic Substance 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 that discretion, and are the exception rather than the rule. Thus, where applicable the mandatory sentence must be expressed in clear and unambiguous terms...”

The Court went on to state that:

“In the premises, we shall state without tiring, that under the Narcotic Drugs and Psychotropic Substances (Control) Act, sentence is still discretionary. We are of course in no way suggesting that under this Act this Court or the High Court has an automatic duty to interfere with the exercise of discretion by the trial court as sentencing is discretionary. That an intervention on discretion is only justified when it is wrongly exercised such as when the court takes in irrelevant facts or leaves out relevant ones and it is automatic when the wrong sentence is imposed which is legally erroneous. See Wanjema v Republic [1971] EA 493 and Diego v Republic [1985] KLR 621. The trial court and High Court meted out a life imprisonment sentence inclusive of a one million fine, on the premise that such sentence was mandatory hence they misdirected themselves. That misdirection calls for our intervention. In arriving at the appropriate sentence that we should substitute we are bound to consider the quantity of the drugs, its value, the mitigation canvassed by the appellant and her antecedents if at all relating to the same offence”.

39. The Court of Appeal was very clear that sentencing is a discretion of the trial court and the appellate court would only interfere with the same where there is material misdirection by the trial court as was well stated by Odunga J in the case of SIMON KIPKURUI KAMORI V REPUBLIC [2019] eKLR thus: -

“Since the appellant is only appealing against sentence, it is important to set out the circumstances under which an appellate court interferes with sentence. The principles guiding interference with sentencing by the appellate Court were properly, in my view, set out in S vs. Malgas 2001 (1) SACR 469 (SCA)at para 12 where it was held that:

“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court…However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”

6. Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:

“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served.”

7. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs. Republic,[1954] EACA 270, pronounced itself on this issue as follows: -

"The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.”

8. To this, I would add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”.(R - v- Shershowsky (1912) CCA 28TLR 263)while in the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus: -

“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”

9. The Court of Appeal, on its part, in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

40. It therefore follows that the sentence meted by the trial court was lawful and I find no fault with the same. I have however in exercising the powers of this court as first appellant court taken into account the mitigation by the Appellant before the lower court to the effect that she was a single mother of one child (son) aged eight (8) years at the time, who depended upon her and the fact that by the time when she appeared before me for the hearing of her appeal, she had another child which she was blessed with before her conviction and being alive to the drug problem in our country would exercise discretion and reverse the sentence for the benefit of her children to an imprisonment period of twenty (20) years from the date of sentence. The fine part of the sentence remains and the other terms passed thereon as issued by the Lower Court and it is ordered.

41. The appellant has right of appeal on both conviction and sentence while the State has a right of appeal on sentence.

Dated, Signed and Delivered at Nairobi This 29th Day of October, 2020 Through Microsoft Teams.

………………..

J. WAKIAGA

JUDGE