https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10673

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E067 OF 2026** **NAOMI NJERI WAWERU……………………………….………....APPELLANT** **VERSUS** **REPUBLIC………………………………………………………….RESPONDENT** *(Being an appeal against the original conviction and sentence delivered by Hon. I. Gichobi (S.P.M) on 8th October 2025 at JKIA Chief Magistrate’s Court Criminal Case no. E154 of 2024 Republic vs Naomi Njeri Waweru and Brian Muasa Njola)* **JUDGEMENT** 1. The appellant and another, not a party to this appeal, were jointly charged with the offence of trafficking in narcotic drugs contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. It was alleged that on 28th October 2024 at about 11.50 a.m. at KCC Mowlem, along Kangundo Road in Embakasi West, Nairobi County, they jointly trafficked in cannabis weighing 145.60 grams with a market value of Kshs. 4,368. Upon conclusion of the trial, the appellant was convicted and sentenced to fifteen (15) years' imprisonment, while her co-accused was acquitted. 2. Aggrieved by both conviction and sentence, the appellant lodged the present appeal. In her petition, she raised eight grounds which, in essence, challenge the sufficiency of the prosecution's evidence, the legality of the charge, the alleged violation of her constitutional rights, and the severity of the sentence. She contends that the charge was defective because the evidence related to cannabis seeds, which, according to her, are not expressly recognised as a narcotic drug under section 4(a)(ii) of the Act. She further argues that she was arraigned thirty-one days after her arrest, contrary to her right under Article 49(1)(f) of the Constitution to be brought before a court within twenty-four hours. Lastly, she maintains that the sentence of fifteen years' imprisonment is manifestly excessive and disproportionate to the quantity and value of the exhibits. 3. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see **Okeno vs Republic [1973] EA 32**). 4. The prosecution called seven witnesses. PW1, PC Amos Musyoka, testified that on 28th October 2024 he received information from members of the public. Acting on the information, he, together with PW2, Corporal Joseph Ruto, and PW7, PC Bonface Mutisya, proceeded to a shop at KCC Mowlem along Kangundo Road, where they found the appellant and her co-accused. A search of the premises yielded green seeds wrapped in a transparent polythene bag suspected to be cannabis sativa, together with assorted coins. 5. An inventory of the recovered items was prepared and produced in evidence. The appellant and her co-accused were arrested and detained at Pangani Police Station. 6. The recovered substance was submitted to the Government Chemist for analysis. PW3, Daniel Cheruiyot, confirmed that it was cannabis and produced the certificate of sampling and analyst's report. PW4, Inspector Francis Mjomba Moro, weighed the exhibit at 145.6 grams, valued it at Kshs. 4,368, and produced the valuation certificate. PW5, Chief Inspector Francis Kieti, prepared and produced photographs of the shop, the recovered substance and the weighing process. 7. PW6, Corporal Lilian Munyinyi, conducted a forensic examination of an Infinix mobile phone recovered from the appellant. She extracted twenty-five photographs depicting packets of a substance suspected to be cannabis and two video recordings showing similar packets, with the voices of a man and a woman audible in the background. She produced the forensic examination report. 8. At the close of the prosecution case, the trial court found that a prima facie case had been established and placed the appellant and her co-accused on their defence. The appellant (DW1) testified that she operated the shop and admitted that she had previously sold cannabis but had stopped. She stated that, a day before her arrest, police officers removed iron sheets from the shop to gain access. The following day, they directed her to open the shop and conducted a search but recovered nothing incriminating. 9. She testified that she and her co-accused were nevertheless arrested and taken to Buruburu Police Station, where she first saw the alleged cannabis seeds. After denying ownership of the exhibits, they were transferred to Pangani Police Station, where their statements were recorded. DW2, Brian Muasa Njola, corroborated the appellant's account. 10. 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 following; **“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:-** 1. **in respect of any narcotic drug or psychotropic substance** **(ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;** 1. To sustain a conviction under section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, the prosecution was required to prove that the substance recovered was a narcotic drug and that the appellant trafficked in it. PW1, PW2 and PW7 testified that, acting on information received, they searched the shop where the appellant was found and recovered a transparent polythene bag containing green seeds suspected to be cannabis. The recovered exhibits were inventoried at the scene, and the appellant was arrested. Their evidence was consistent and remained unshaken on cross-examination. 2. PW3, the Government Analyst, examined the exhibits and confirmed that they were cannabis, producing the certificate of sampling and the analyst's report. PW4 subsequently weighed the exhibits at 145.60 grams, valued them at Kshs. 4,368, and produced the valuation certificate. The scientific evidence was neither challenged nor displaced by the defence. 3. The prosecution’s evidence was that the appellant was found in possession of the recovered cannabis at the shop where she conducted business. Further, PW6's forensic examination of the appellant's mobile phone revealed photographs and video recordings depicting packets of a substance consistent with cannabis, corroborating the prosecution's case that the appellant was engaged in the sale and distribution of the narcotic drug. This evidence was consistent with the testimony of the arresting officers and was properly relied upon by the trial court. 4. I have also considered the chain of custody of the exhibits. The evidence demonstrates that the recovered substance was inventoried at the scene, forwarded to the Government Chemist for analysis, thereafter weighed and valued, and ultimately produced before the trial court. Each officer who handled the exhibits testified as to their custody and transmission. No material break in the chain of custody was demonstrated, nor was there any evidence suggesting that the exhibits were tampered with, substituted or contaminated. The integrity of the exhibits was therefore preserved throughout the investigation and trial. 5. The appellant further contended that the charge was defective because it referred to cannabis whereas the evidence related to cannabis seeds. The Government Analyst confirmed that the exhibits were cannabis, and there was no evidence that the exhibits were anything other than the prohibited narcotic drug specified in the charge. The description of the exhibits as cannabis seeds did not occasion any prejudice to the appellant or render the charge defective. 6. The appellant also complained that she was arraigned thirty-one days after her arrest, contrary to Article 49(1)(f) of the Constitution. While every arrested person is entitled to be brought before a court as soon as reasonably possible, and in any event within twenty-four hours unless the Constitution provides otherwise, a breach of that right does not, of itself, invalidate an otherwise lawful trial or conviction. The appellant did not raise the issue before the trial court or demonstrate that the alleged delay occasioned any prejudice to her defence. 7. Having independently re-evaluated the entire evidence on record, I am satisfied that the prosecution proved all the essential ingredients of the offence beyond reasonable doubt. The conviction was safe and is accordingly affirmed. 8. The appellant further challenges the sentence of fifteen (15) years' imprisonment as harsh and excessive. Sentencing is a matter of judicial discretion, and an appellate court will only interfere where the sentence is founded on a wrong principle or is manifestly excessive. In **Bernard Kimani Gacheru v Republic Cr. App. No. 188 of 2000**, the Court of Appeal held that an appellate court should not interfere with sentence unless the trial court acted on a wrong principle, overlooked a material factor, or imposed a manifestly excessive sentence. 9. In this case, the recovered cannabis weighed 145.60 grams and was valued at Kshs. 4,368. Considering the relatively low value of the narcotic drug and that the appellant has been in custody since 8th October 2025, a period of approximately nine months, I find that the sentence of fifteen (15) years' imprisonment was disproportionate. 10. The period already served constitutes sufficient punishment in the circumstances. The appellant shall be released forthwith unless otherwise lawfully held. Orders accordingly. **Judgement dated and delivered virtually this 15th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Appellant Present Mr. Mutuma for the Respondent Karimi Court Assistant