[2022] KEHC 14790 (KLR)

Musila v Republic (Criminal Appeal E016 of 2022) [2022] KEHC 14790 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14790 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E016 of 2022

GMA Dulu, J

November 1, 2022

Between

Peter Mutua Musila

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. E. Muiru in Kilungu Principal Magistrate’s Court Criminal Case No. 256 of 2019)

Judgment

1. The appellant was charged in the magistrate’s court with traffic of narcotic drugs contrary to section 3(1) (a) as read with section 3(2)(b) of the Narcotic Drugs and Psychotropic Substances Act 1994. The particulars of the offence were that on March 13, 2019 at about 2300 hours at Kathu Village, Kasikeu Division in Mukaa Sub-County within Makueni County was found trafficking in 14. 10 kgs of cannabis sativa (bhang) which was not medically prepared.

2. He was charged with a second count of possession of narcotic drugs contrary to section 3(1) (a) as read with section 3(2)(b) of the Narcotic Drugs and Psychotropic Substance Act 1994. The particulars of offence were that on the same date, time and place was in possession of 14. 10 kgs of cannabis sativa (bhang) which was not medically prepared.

3. He denied both charges. After a full trial, he was acquitted of the 1st count of trafficking. He was however convicted on the 2nd count of possession of narcotic drugs and sentenced to four (4) years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1. That the charge was not read and explained to him as required under article 50 of the Constitution.2. That there was no conclusive proof of possession beyond reasonable doubt.3. That the prosecution witnesses were not credible.4. That no proper investigations were conducted.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by the appellant as well as the submissions filed by the director of public prosecutions.

6. This being first appeal, I am duty bound to re-evaluate all the evidence on record, and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) EA 32.

7. I have evaluated the evidence on record. In proving that case, the prosecution called three (3) witnesses. On his part, the appellant tendered sworn defence, testimony and called three (3) other witnesses.

8. According to the prosecution witnesses, on the night in question and following a tip off, the area assistant commissioner Pw1 Wanyoike Arthur participated in an ambush and together with members of the public who included Pw2 Simon Mbondo a community policing member, proceeded to the house of the appellant at 11pm.

9. They knocked at the door and the appellant initially did not open, but later the wife of the appellant opened the door and on entering recovered a sack containing the cannabis sativa which was taken to the police station and weighed, and a report from the government analyst obtained.

10. In his defence, the appellant stated that the people who went to his house at night broke the door, assaulted him and forced him to carry a sack which they planted on him and which he did not know anything about. In addition, the said sack was not weighed to ascertain the weight which was alleged. According to him this case was a fabrication.

11. The appellant has complained in submissions that the charge is defective as the street value of the alleged cannabis was not stated. Indeed, the charge does not indicate the value of the cannabis sativa. In my view however, that omission would only affect the sentence but would not make the charge fatally defective, as that defect if at, all could not have prejudice the appellant in any way and was thus curable under section 382 of the Criminal Procedure Code.

12. The appellant has complained that the charge was not read and explained to him. That is not true as on April 14, 2019 the charges were read to him. Infact he was sat the trial represented by counsel Mr Okinyo.

13. The appellant has complained that the prosecution witnesses were not credible. Having perused the evidence on record, I am of the view that all the prosecution witnesses stated in court what they believed was true and was thus were credible witness. That does not mean however that credible witnesses cannot make a mistake.

14. I now go to proof of the charge for which the appellant was convicted. He was charged with possession of cannabis sativa. The prosecution was thus required to prove possession. Secondly, the prosecution was required to prove that the contents of the sack was cannabis sativa. Both elements had to be proved beyond any reasonable doubt.

15. From the evidence on record from Pw1 and Pw2 in my view, possession of the sack and its contents was proved. The two witnesses physically went into the house of the appellant at night. He was present therein at night. The sack was found in one of the rooms. He did not give an explanation on how it came there. His defence story that it was planted on him outside the house in my view was a lie as neither Pw1 nor Pw2 had any reason to plant a sack of that substance on him.

16. The appellant was thus proved to be in physical in custody and control of the sack, and thus possession of the same was proved.

17. Was the substance in the sack proved to be cannabis sativa? A government analyst’s report was relied upon. However, Pw3 the investigating officer, did not explain how and by whom samples of the contents of the sack were taken to the government analyst. He also did not explain how and when the report from the government analyst was received. I note that the defence had objection to production and reliance on the government analyst’s report but was overruled by the trial court.

18. In my view, the objection of the defence on this crucial evidence should have prompted the prosecution to at least have gone into and give to the court the detailed sequence events leading to obtaining that report, even if they were not going to avail the government analyst in court.

19. The prosecution did not do so. In the result, it is not clear or certain from the evidence on record from the evidence, whether the report relied upon by the prosecution, is a genuine report from the government analyst and whether it relates to the substance or material found in the subject sack, which was recovered from the house of the appellant.

20. In my view, therefore, the prosecution did not prove beyond any reasonable doubt that the substance in the sack found in the house of the appellant, was cannabis sativa as alleged. On that account alone, the appeal will succeed. The conviction will thus be quashed and sentence set aside.

21. Consequently, and for the above reasons, I allow the appeal quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.

DELIVERED, SIGNED & DATED THIS 1ST DAY OF NOVEMBER 2022, IN OPEN COURT AT MAKUENI.................................GEORGE DULUJUDGE