[2022] KEHC 1790 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL 216OF 2019

LUCY NDUTA CHEGE .................APPELLANT

VERSUS

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

(Being an appeal from a conviction and sentence in JKIA Law Courts, in Criminal Case No 147 of 2017,

by the Honourable L. O. Onyina, SPM, dated 14. 6.2018)

JUDGMENT

The appellant LUCY NDUTA CHEGE was charged before the lower court with 1 count of Trafficking in narcotics drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act, No. 4 of 1994. The particulars of the charge were that on 12. 7.2017 at Jomo Kenyatta International Airport, terminal 1E, within Nairobi County, Jointly with others not before the court, she unlawfully trafficked by conveying in a pink suitcase, a narcotic drug, namely cocaine to wit 2578. 64 gramms with a market value of Ksh.10,314,560/=, concealed in a false top and false bottom of the suitcase.

The case of the appellant progressed through full hearing. She was eventually convicted as charged. On 14. 6.2018, she was convicted to serve 20 years imprisonment. In addition, she was also sentenced to pay a fine of Kshs.30 million and in default to serve 1-year imprisonment in accordance with section 28(2) of the penal code. the sentences were ordered to run consecutively under the proviso to section 37 of the penal code.

Being aggrieved of both the conviction and sentence, the appellant filed an appeal before this court. She has raised 2 grounds of appeal as follows:

1. THAT the trial magistrate erred in matters of law and fact by failing to note that there were, grave material contradictions and inconsistencies in the prosecution’s case.

2. THATthe court erred in law and in facts by failing to put into consideration the appellants pragmatic statement of defence contrary to section 169(1) of the criminal procedure code.

The appellant has pleaded that this appeal be allowed in its entirety. The prosecution side, have, on the other hand pleaded that this appeal be dismissed.

This appeal was canvassed by way of written submissions. The submissions of both sides were properly filed and on record.

It was the submissions of the appellant that the prosecution did not prove the case against her beyond any reasonable doubt as required by the law. First, that the passport of appellant missed an A, and was noted as No. 1809087 only to be later changed to A 1809087. Second, the appellant submitted, based on Bukuya Versus Uganda (1972)EA that the prosecution failed to call crucial witnesses, and thereby weakening the prosecution’s case. The name of the one Christine was mentioned as one the appellant had allegedly been talking to when she was whisked away.

Appellant also pointed out various contradictions in the prosecution’s case. She cited the evidence of PW1 regarding Christine and evidence of PW1 regarding the opening of the suit case. She also raised the issue of chain of custody of the exhibits between 18. 7.2017 and 3. 8.2017, making it possible to nail the appellant. Further, the appellant challenged the evidence of PW1 on the analysis of the drugs i.e the quick analysis done by PW1 and his colleagues.

Lastly, the appellant also raised the issue that the period she spent in custody was not factored in her sentence in accordance with section 333(2) of the criminal procedure code, she cited, Ahamad Abolfathi Mohamed & Ano. Versus Republic (2018)eKLR, in which it was held;

“Taking into account the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody.”

From the prosecution side, it was submitted that the prosecution proved the case against the appellant beyond any reasonable doubt as required by the laws since all the elements of the offence were proved. That PW1 testified as to how they had acted on intelligence information to arrests the appellant. That the claim tag she had had matching serial number on the luggage tag that the appellant identified. A notice of seizure was then made. That PW2 and PW5 gave the same evidence. And that the appellant personally identified her luggage at the conveyor belt. That the inventory of the recovered items was made by PW3 in the presence of the appellant who signed the same. And that the weighing was done by PW4 and a certificate of sampling was duly prepared. Valuation was also done by Pw6. Photographs of the scene were done by P7 and 8.

On the issue of sentence, counsel for the state relied on the case of Benard Kimani Gacheru Versus Republic (Cr. App No. 188/2000, in which the court held;

“It is now settled law, following several authorities by this court and the High Court, that sentence is a matter that vests 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 the 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 heary 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, any of the matters already stated is shown to exist.”

It was submitted that sentence was proper and safe. The court was urged to dismiss this appeal.

From the onset, it must be stated that this matter is before this court as a 1st appellate court. The jurisdiction of the 1st appellate court is well settled. In the case of David Njuguna Kariuki Versus Republic (201)eKLR, it was held;

“The duty of the 1st appellate court is to analyse and re-evaluate the evidence which was before the trial court, and itself come to its own conclusion.”

In determining this appeal, this court is therefore bound to consider the evidence on record a fresh and to make its own determination. It is in the circumstances necessary to wholly consider the evidence as given by both the prosecution and the defence sides.

The evidence of the prosecution commenced with that of PW1, Jacom Muchai, a Superintendent of police, whose evidence was that on 12. 7.2017, while acting on information, they laid an ambush at JKIA, terminal 1E. they already had her passport number and description that on the appellant landing by Ethiopian Airlines, they approached her and asked her about her passport and luggage. She gave out her passport No. Axxxxxx with her luggage tag inside. It was in her name Lucy Nduta Chege (Exh. 1). The luggage tag was No. Et 748563 (Exh.2). That appellant confirmed that her luggage was pink suitcase. She collected the said suitcase and opened the same (Exh. 3). That on opening, the witness noticed that the clothes therein could possibly not fit her, raising suspicious. The weight on the suitcase was also not consistent. That on being asked, the appellant said that one Christine is the one who sent her to Togo to collect the suitcase, and that she had her debt of Ksh.50,000/=

The witness went on that he noticed that the suitcase was hand stitched around the edges and that they were 2 suitcases. With her concurrence, the suitcase was opened to reveal a black paper concealing another white paper. There was white substance inside. The bottom of the suitcase also revealed the same thing on being opened (Exh. 4, 5). A quick analysis showed the substance to be cocaine. An inventory of the items recovered was then taken. Same was duly signed by the witness, the appellant, and duly witnessed by Coporal Faith Nasarian and Corporal James Mure (Exh. 16). The witness also prepared noted of seizure which the appellant also signed.

Further, that Dennis Owino, Government Chemist did the sampling certificate of weighing was also prepared, showing total gross weight of 2718. 44 gramms, and actual weight of 2578. 64 gramms. All this happened in the presence of the appellant. Photographs were also taken by scenes of crimes officers. That the recovered substance was then submitted to the Government Chemist vide a memo form. The witness prepared the movement of the seized substances on 18. 7.2017, which the appellant signed. The exhibit was taken for examination on 3. 8.2017, the same having been in custody of C.I Ndegwa. The witness produced Exh. 7, 9, 10, 11 and 13.

On being cross examined, the witness went on that he had identified the appellant through the passport and that she identified the pink suitcase. That the appellant consented and signed all the documents voluntarily. She also picked her suitcase by herself. The number on the tag tallied with the number on the bag. And she opened the suitcase herself and that the appellant only claimed that it is Christine who had told her to bring the luggage and that she owed Christine 50,000/=. In the view of the witness, Christine was an accomplice.

PW2 Corporal James Mure Yaa, recalled that on 12. 7.2017 he had been on duty at JKIA with Faith Naserian when they got information about a lady coming from Togo via Ethiopian Airlines, suspected to be carrying narcotic drugs. They spotted the lady and asked her for her passport which showed the names of Lucy Nduta Chege. Same passport had a luggage claim tag No. Et748563, and vaccination card. That on being asked, the appellant went and picked her pink suitcase which she later opened to reveal false top and bottom from which whitish substances were recovered. The evidence of this witness on cross-examination was the same as that of PW1.

The 3rd witness was corporal Reuben Munialo testified that he had joined the other officers with the appellant. He prepared the inventory of the exhibits which the appellant also signed. The other officers witnessed same (Exh. 6). The 4th witness, PW4 Dennis Onyango Owino a gazetted officer, witnessed the weighing of the exhibits by PW1 before taking samples of the same for a preliminary test. The preliminary test confirmed it was cocaine. He later analysed the same and found it to contain cocaine with a purity of 40%. He produced his report in court (Exh. 26, 27, 28).

PW5 corporal Faith Naserian Kishoin had been with PW1 and the other arresting officers at JKIA and her evidence was the same. She is the one who searched the suitcase of the appellant. And the 6th witness, PW6 CI Joshua Okalo, is the one who prepared the certificate of valuation showing the value at Ksh.10,314,560/= (Exh.32). in his opinion, a gram of cocaine goes for Ksh.4000/= in the street market, hence the total value he gave.

PCJapheth Mugambi was PW7, a scenes of crimes officers. He is the one who processed the scene and took the relevant photographs which he produced in court (Exh. 33). He also produced his certificate (Exh. 34). And PW8, corporal Hudson Migiri Tabukia, another scenes of crimes officer, also took photographs of the exhibits. He also produced his set of the photographs (Exh. 35) and his own certificate (Exh. 36).

The last prosecution witness was Pw9, corporal Noral Ekodir. She was the investigating officer in this matter. Her evidence summed up the evidence of the other witnesses.

The appellant having been found with a case to answer, opted to give a sworn defence. In her testimony, the appellant stated that on 9. 7.2017 she had gone to Togo for a vacation. That after 3 days she arrived back at JKIA where she met 2 police officers who did routine interrogations with her, James Muchai and Faith Naserian (Both witnesses). That she denied having a hand language on being asked. That officer Muchai then asked officer Naserian to pick a pink suit case in the belt, which she innocently did without any suspicions. That on searching the suitcase, nothing was found. That later at the office, he found more officers at a table checking on what was suspected to be narcotics drugs. She had then denied knowledge of the suitcase. She was then arrested without her rights being explained to her. She went on that the alleged hand luggage and suitcase tag were not in her name. Neither did the prosecution produce the CCTV footage showing the incident.

The appellant called no witness. I have considered the evidence on record by both sides as enumerated above. In my view, the following issues come up for determination in this appeal.

i) Whether the appellant trafficked in the said narcotic drugs by conveying the same as charged.

ii) Whether the prosecution proved its case against the appellant beyond any reasonable doubt as required by the law.

iii) Defence of the appellant.

iv) Sentence.

On the 1st issue, it is noted that the appellant was charged with trafficking in narcotic drugs contrary to section 4(a) of the Act. Section 2 of the Act defines trafficking as

“Trafficking means the importation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery, or distribution by any person of a narcotic drugs…”

The act of conveying under which the appellant was charged is captured as an act of trafficking.

The prosecution’s case was based on the evidence of at least 4 witnesses, PW1, PW2, PW3 and PW5 who gave exactly the same evidence on how acting on intelligence information, they had laid a trap to catch the appellant at the JKIA on 12. 7.2017. The appellant landed, vide Ethiopian Airlines Flight No. ET308, through terminal 1E. that on being requested, she handed over her passport No. Axxxxxx which had her luggage tag No. ET748563 inside it. That on further request, the appellant proceeded to the luggage conveyor belt and picked her pink suitcase. That the suitcase bore the same serial number ET 48563 as the luggage tag the appellant had in her passport which she had handed over to the police officers. That on opening the said pink suitcase of the appellant, same was found to be with a false top and false bottom, from which the narcotic drugs (cocaine) were recovered. An inventory of the recovered items was made and same was signed by the appellant and the officer who made it and accordingly witnessed by the other arresting officers. That the recovered exhibits were weighed in the presence of the appellant and a certificate to that effect was duly made. Scenes of crimes officers also took photographs of the scene. And lastly, that the echibits were examined at the Government chemist and determined to be cocaine, a narcotic drugs.

From the evidence of the prosecution witnesses, which was well corroborated, there is no doubt that the appellant had landed at JKIA from Togo via Ethiopia. Her passport was clearly in her name. and inside her passport was a luggage tag of the same serial number as that of the pink suitcase which she picked as her own when asked to choose her luggage. She even voluntarily signed the inventory of the recovered items produced as exhibits.

There is no doubt in my mind, as I hereby find, that the appellant was the owner and or the one in control of the pink suitcase from which the narcotic drugs were recovered. I am further convinced that she had conveyed the same from her admitted point of origin, Togo, to the JKIA, Kenya. As stated above, the said narcotic drugs were duly weighed and found to be 2578. 64 grammes with an estimated market value of Ksh. 10,314,560/=. The certificate of valuation and examination were accordingly produced as exhibits in court.

All these factors put together convinces this court that the prosecution duly discharged its burden herein and proved beyond any reasonable doubt that the appellant in fact trafficked in narcotics drugs by conveying in a pink suit case narcotic drug namely cocaine of weight 2578. 64 gramms with a market value of Ksh.10,314,560/= while concealed in a false top and false bottom of the said suitcase. I agree with trial magistrate on this finding.

The appellant in her defence denied the charges on grounds that the luggage tag found in her passport was not in her name. yes, that may have been true. But that luggage tag bore the same serial number as the tag on the pink suitcase which she voluntarily picked as her own upon being requested to pick her luggage. The fact that she had in her possession in her passport that luggage tag can only mean one thing. That the pink suitcase was undoubtly hers. And the fact that she voluntarily signed the inventory of the recovered items is further proof that she was indeed the owner of the recovered exhibits. Her statement that she did not know where the suitcase was brought from is totally unconvincing.

The appellant, by her submissions has raised a number of issues. First, that certain crucial witnesses were never called by the prosecution. She cited one Christine, who allegedly talked to her when she landed. With respect, this issue was answered by the investigating officer, that the said Christine still remains a subject of investigations. And in my view, the failure by the prosecution to call the said Christine as a prosecution witness, cannot affect in any way the otherwise watertight case of the prosecution that without a doubt proved that the appellant was guilty of trafficking in the narcotic drugs.

Similarly, the chain of custody of the exhibits was clearly explained by the prosecution witnesses. It is worth noting that the appellant never raised this issue with the prosecution witnesses as they testified. And the issue that the prosecution did not show any CCTV images of the arresting of the appellant, again I am not convinced that this would be fatal to the case of the prosecution, in view of the well corroborated evidence presented by the prosecution witnesses.

I sincerely d not find merit in the defence of the appellant.

Regarding sentence, from the submissions, of the appellant, it is clear that the appellant appreciates that the sentence meted out against her was legal and proper. Her only challenge on the sentence is that the same does not take into account the period she spent in custody pending the determination of her trial. Section 333(2) of the Criminal Procedure Code at its proviso declares,

“Provided that where the person sentenced under subsection (1) has prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

From the sentence proceedings of the trial court of 14. 6.2018, the Honourable Senior Principal Magistrate did not indicate whether such period spend in custody was accounted for in the sentence. He ought to have done so.

The appeal of the appellant, lacking in merit, is hereby dismissed. The appellant shall serve out the sentence as passed by the trial court on 14. 6.2018. in satisfaction with the requirement of section 333(2) of the Criminal Procedure Code, the sentence shall run from 17. 7.2017 when the appellant was first arraigned before the court. It is so ordered.

D. O. OGEMBO

JUDGE

8. 3.2022.

Court:

Judgment read out in court (on-line) in the presence of the appellant (Langata Women) and Mr Kiragu for the state.

D. O. OGEMBO

JUDGE

8. 3.2022.

Appellant:

I request for certified copy of the Judgment.

Court:

Certified copy of the Judgment to be prepared immediately and issued to the appellant as requested

‘O’

FROM: HIGH COURT APPELLATE SIDE

TO: @ G.K. LANGATA WOMEN PRISON

INFO: PHQ.

9TH MARCH, 2022

HCCRA NO. 216 OF 2019

HIGH COURT CRIMINAL APPEAL NO. 216OF 2019 ORIGINATING FROM THE CHIEF MAGISTRATE’S COURT AT JKIA CRIMINAL CASE NO. 147 OF 2017. APPELLANT LUCY NDUTA CHEGE LTA/678/2018/LSTHE APPELLANT SHALL SERVE OUT THE SENTENCE AS PASSED BY THE TRIAL COURT ON 14. 6.2018. IN SATISFACTION WITH THE REQUIREMENT OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE, THE SENTENCE SHALL RUN FROM 17. 7.2017 WHEN THE APPELLANT WAS FIRST ARRAIGNED BEFORE THE COURT. IT IS SO ORDERED.

DEPUTY REGISTRAR