https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13085

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E022 OF 2026** **NETIMA NGAMSAP…………..……………………………...……APPELLANT** **VERSUS** **REPUBLIC………………………………………………………….RESPONDENT** *(Being an appeal against the original conviction and sentence delivered by Hon. I. Gichobi (S.P.M) on 18th December 2025 at JKIA Chief Magistrate’s Court Criminal case no. E049 of 2023 Republic vs Netima Ngamsap)* **JUDGEMENT** 1. The applicant was charged and after a full trial convicted for 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. Particulars are that on the 22nd day of June, 2023 at Terminal IC in Jomo Kenyatta International Airport within Nairobi County, jointly with others not before court trafficked in Narcotic drug namely cocaine to wit 2092 grams with a market value of Ksh.8,368,000/= by conveying in a false bottom of grey suitcase in contravention of the provisions of the said Act. He was sentenced to serve twenty-seven (27) years imprisonment. 2. In his appeal, she challenged the totality of the prosecution’s evidence against which he was convicted. The appellant argued that the ingredients of the offence charged were not proved beyond reasonable doubt. Further that the prosecution did not call essential witnesses to warrant her conviction. That the sentence imposed was harsh and excessive. He urged the court to quash her conviction and set aside the sentence imposed. 3. As this is a first appeal, I am enjoined to consider all the evidence and reach an independent decision whether or not to uphold the judgment. In so doing, it is necessary to set out the facts as they emerged before the trial court. See **Okeno vs. Republic [1972] E.A 32.** 4. The prosecution case was that on 22nd June 2023, PW6, No. 91889 PC Victor Odhiambo Otieno, attached to the DCI Anti-Narcotics Unit (ANU), was on duty at Terminal IC, JKIA, when he and other officers identified the appellant, a Thai national who had checked in for a Qatar Airways flight to Doha, en route to Singapore. The appellant was escorted to the ANU offices for further search. He had a greenish travelling bag and a black and white handbag, while his grey suitcase, which had been checked in, was retrieved from Qatar Airways. 5. Searches of the greenish bag and handbag yielded nothing. However, the grey suitcase had a concealed false bottom. PW6 used a knife to unscrew it and expose the compartment, from which two blue packages wrapped in carbon paper and containing white powdery substances were recovered. PW4, No. 49170 Sergeant Joseph Wafula Wanjala, stated that the suitcase also contained the appellant’s Thailand passport No. AC4858140, COVID-19 vaccination certificate, Qatar Airways boarding passes, e-ticket, other travel documents, bank card, driving licence, national identity card and a suitcase tag bearing his name. A spot test conducted by PC Victor Odhiambo, assisted by Sergeant Sheila Kipsoi, indicated that the substance was cocaine. The appellant was thereafter taken to JKIA Police Station. 6. PW11, No. 83720 Sergeant Sheila Kisnoi, the investigating officer, confirmed that the grey suitcase bore a Qatar Airways tag in the appellant’s name. She stated that the false bottom appeared heavier on one side and, upon being opened, contained the two packages of white powder concealed beneath blue carbon paper. She prepared the inventory dated 22nd June 2023, which was signed by the appellant, and produced the notices of seizure, exhibit memo and record of custody of the recovered substances. 7. On 29th June 2023, PW1, No. 84167 Corporal George Odhiambo, accompanied the appellant, Sergeant Sheila Kisnoi and other officers to the Government Chemist for weighing and sampling. The two packages were marked P1 and P2. P1 weighed 664 grams while P2 weighed 1,428 grams, giving a total weight of 2,092 grams. PW1 produced the weighing certificate. Government Analyst Dennis Owino Onyango sampled 38.12 grams from each package and conducted a preliminary test which indicated cocaine. PW7, Dennis Owino Onyango, a gazetted Government Analyst, subsequently examined the samples and prepared his report dated 10th August 2023, which he produced together with the samples. 8. PW3, No. 247007 PC Titus Mbogo Kahindi, a trained crime scene investigator and forensic expert, documented the weighing and sampling exercise. He produced 33 photographs showing the grey suitcase, its concealed compartment, packages P1 and P2, their respective weights, the sampling process, empty packaging, weighing certificate and sampling certificate, together with the accompanying certificate. 9. PW5, No. 236120 Chief Inspector Philip Langat, the officer in charge of the ANU in Nairobi and a gazetted proper officer and valuer, testified that one gram of cocaine was valued at Kshs.4,000. He accordingly valued the 2.092 kilograms recovered from the appellant at Kshs.8,368,000 and produced the valuation certificate and Gazette Notice No. 9805 of 20th September 2017. 10. PW2, Fredrick Maina, the security manager at Davana Hotel, produced CCTV footage, receipts and the check-in list relating to the appellant’s stay from 17th June 2023. The records showed payments of USD 40 on 17th June, USD 80 on 18th June, Kshs.15,640 through M-Pesa on 20th June and Kshs.2,200 on 21st June 2023. PW8, No. 110045 PC John Safari, a forensic imaging and certified audio-visual analyst, examined the footage and produced 23 still photographs, his forensic report, certificate and the CD containing the footage. The images placed the appellant at Davana Hotel and JKIA, including footage of him with the luggage. 11. PW10, Polly Wanja Njue, an immigration officer, produced the appellant’s PISCES travel history. It showed that he had entered Kenya on 8th January 2023 using passport No. AB16663350 and departed for Doha on 14th January 2023. He returned to Kenya on 17th June 2023 using passport No. AC4858140 and had not thereafter recorded a departure from Kenya. 12. PW9, No. 92578 Corporal Lilian Munyinyi, a forensic examiner, examined an iPhone 7 Plus, IMEI No. 359217074995793, registered in the appellant’s name and paired with a Safaricom SIM card. Using Cellebrite UFED, she extracted WhatsApp conversations, images and other data. The conversations between the appellant and one Rocky showed that, on 15th June 2023, Rocky arranged the appellant’s air ticket and directed him to Davana Hotel, where documents would be delivered. On 17th June 2023, the appellant confirmed his arrival in Kenya. Rocky thereafter informed him that someone would meet him at the hotel. The appellant confirmed that Aris had visited him and shared a photograph. Rocky subsequently instructed him to ensure that the bag was wrapped at the airport. The extracted material also contained travel documents, tickets and images of the appellant with two bags at JKIA. 13. PW11 stated that she obtained the CCTV footage, mobile-phone extraction and immigration records and caused the cocaine to be valued. In her view, the appellant’s travel pattern, communications, possession of the grey suitcase and the CCTV evidence demonstrated his knowledge of its contents. She stated that the cocaine had been concealed in the false bottom beneath carbon paper intended to defeat detection by scanners and that the appellant was travelling through Qatar towards his intended destination. 14. At the close of the prosecution case, the appellant was found to have a case to answer. He elected to give sworn evidence and called no witness. 15. The appellant, a 35-year-old Thai national, stated that he had previously worked as a masseuse in Thailand and had travelled to Kenya as a tourist. He denied any previous arrest or involvement in drug trafficking. He maintained that the grey suitcase belonged to a Kenyan woman called Alice, whom he met at Davana Hotel. According to him, Alice paid for his accommodation and another woman delivered the suitcase to him shortly before he left the hotel, instructing him to take it to Thailand and hand it to a friend. 16. The appellant stated that he had initially travelled with only one suitcase containing clothes and personal effects and a handbag containing his documents and cosmetics. The additional suitcase was delivered about 30 minutes before his departure. He briefly opened it and saw clothes but did not know that it had a concealed compartment. He claimed that he only became aware of the false bottom when the police opened it and recovered the powder. 17. He further stated that Rocky had facilitated his travel from Thailand through Guinea and Sierra Leone to Kenya, intending that he would subsequently return to Thailand. Although he had never met Rocky, they communicated through chats and he kept Rocky informed of his movements. He stated that Rocky contacted him while he was being questioned by the police. The appellant further testified that he travelled to JKIA by taxi with the woman who had delivered the suitcase, who paid the fare and alighted before reaching the airport. 18. The appellant denied knowledge of the recovered substance, stated that he had never used drugs and maintained that he was unaware of the concealed contents of the suitcase. He consequently asserted that his possession of the suitcase was innocent and that he had no knowledge that it contained cocaine. 19. In his appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. 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 follows; **“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:-** **(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;”** 1. The term trafficking is defined in Section 2 of the Act as: **“The importation, exportation, manufacture, buying, sale, giving, 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 or making of any offer in respect thereof…”** 1. In **Gabriel Ojiambo Nambesi vs Republic, [2007] eKLR**, the Court of Appeal addressed itself to the above definition and what is required to prove the offence of trafficking in narcotic drugs. The court stated thus: *"It is evident from the definition of trafficking that the word is used as a term of art embracing various dealings with narcotic drugs or psychotropic substances. In our view for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify the conduct of an accused person which constitutes trafficking. In addition, and more importantly, the prosecution should at the trial prove by evidence the conduct of an accused person which constitutes trafficking."* 1. The case against the appellant was that on 22nd June 2023, officers attached to the Anti-Narcotics Unit at JKIA, acting on information that he was suspected of trafficking narcotic drugs, intercepted him at Terminal IC as he prepared to travel on Qatar Airways to Doha and onward to Singapore. A search of his greenish travelling bag and black and white handbag yielded nothing. However, the grey suitcase he had checked in was retrieved from the airline and searched. PW6, No. 91889 PC Victor Odhiambo Otieno, opened a concealed false bottom and two blue packages containing white powdery substances were recovered. The suitcase bore a Qatar Airways tag in the appellant’s name and contained, among other items, his passport and travel documents. 2. The recovered substances were subsequently weighed and sampled at the Government Chemist on 29th June 2023. PW1, No. 84167 Corporal George Odhiambo, testified that package P1 weighed 664 grams while P2 weighed 1,428 grams, giving a total weight of 2,092 grams. Samples of 38.12 grams were taken from each package. PW7, Government Analyst Dennis Owino Onyango, examined the samples and confirmed them to be cocaine. PW5, No. 236120 Chief Inspector Philip Langat, a gazetted valuer, valued the 2.092 kilograms at Kshs.8,368,000. 3. PW11, No. 83720 Sergeant Sheila Kisnoi, the investigating officer, prepared the inventory dated 22nd June 2023, which was signed by the appellant, and produced the notice of seizure, exhibit memo, notice of intention to tender records and record of custody. PW1 detailed the weighing and sampling process, while PW3 documented it through 33 photographs. The movement and handling of the exhibits from recovery, weighing and sampling to examination were therefore satisfactorily accounted for. The prosecution also established a clear chain of custody. 4. On whether a linkage between the appellant and the suitcase was established, PW8 produced CCTV footage placing the appellant with the luggage at Davana Hotel and JKIA. PW9 produced extracted WhatsApp communications between the appellant and Rocky, including arrangements for his travel, his stay at Davana Hotel, delivery of documents and instructions concerning the wrapping of the bag at the airport. The appellant’s immigration records, produced by PW10, corroborated his movements into Kenya and his intended departure. 5. In his defence, the appellant denied knowledge of the cocaine. He claimed that the grey suitcase belonged to a Kenyan woman, Alice, and had been delivered to him by another woman shortly before his departure, with instructions to take it to Thailand. He maintained that he saw only clothes when he briefly opened the suitcase and was unaware of the concealed compartment. He also denied knowledge of the drugs and asserted that Rocky had facilitated his travel. 6. I have considered the appellant’s defence against the totality of the prosecution evidence. The evidence that the appellant checked in the grey suitcase bearing his name, the cocaine was concealed in its specially constructed false bottom, and the contents were recovered from luggage in his possession, when considered alongside the CCTV footage, travel records and communications extracted from his phone, provides compelling evidence of knowledge and possession. The appellant’s explanation concerning the unexplained delivery of the suitcase is inconsistent with this evidence and does not raise a reasonable doubt. 7. The appellant also complained that the prosecution failed to call all the witnesses who were present during his arrest, search and recovery. The contention is considered against the principles in **Bukenya & Others v Uganda [1972] EA 549,** that the prosecution is not required to call a superfluity of witnesses, and an adverse inference arises only where the evidence adduced is barely adequate. In the present case, the prosecution called witnesses who directly participated in the interception, recovery, weighing, sampling and investigation. Their evidence was mutually corroborative and sufficient to establish the material facts. I therefore find no basis for drawing an adverse inference from the witnesses not called. 8. I therefore find that the prosecution proved beyond reasonable doubt that the substance recovered from the appellant was cocaine, a narcotic drug, and that the appellant was in possession of it with the requisite knowledge. The defence did not dislodge the prosecution case. 9. The appellant was sentenced to serve twenty-seven (27) years’ imprisonment, computed from the date of arrest. In imposing sentence, the trial court considered his mitigation, the pre-sentence report and his status as a first offender. 10. Section 329 of the Criminal Procedure Code empowers the court, before passing sentence, to receive such evidence as may inform itself of the proper sentence. The sentencing court must therefore consider the nature and circumstances of the offence alongside the mitigating and aggravating factors in arriving at a proportionate sentence. 11. I find that the sentence of twenty-seven years was lawful, but manifestly excessive in the circumstances of this case. The appellant was a first offender, and that mitigating circumstance ought to have attracted a lesser custodial term. The quantity and value of the cocaine remain significant aggravating factors, but they must be balanced against the appellant’s age and the principle of proportionality in sentencing. 12. Accordingly, the appeal on sentence succeeds. The sentence of twenty-seven (27) years’ imprisonment is set aside and substituted with a sentence of seventeen (17) years’ imprisonment, to run from 22nd June 2023 the date of the appellant’s arrest. Upon conclusion of the custodial sentence, the appellant shall be repatriated to his country of origin, Thailand. Orders accordingly. **Judgement dated and delivered virtually this 25th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**