[2022] KEHC 17256 (KLR)

Nyutu v Republic (Criminal Appeal 72 of 2019) [2022] KEHC 17256 (KLR) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17256 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 72 of 2019

SN Mutuku, J

December 8, 2022

Between

David Githinji Nyutu

Appellant

and

Republic

Respondent

(Being an Appeal against both the conviction and sentence delivered by the Hon. M.Kasera PM at the Chief Magistrate’s court at Kajiado on the 2nd September, 2019)

Judgment

1. The Appellant, David Githinji Nyutu, was charged jointly with Simon Waithera Nyutu with the offence of Trafficking in Narcotic Drugs contrary to section 4(9) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The particulars thereunder are that on 17th August, 2015 at Mashuru Sub-County within Kajiado County, jointly trafficked in Narcotic Drugs by conveying twelve gunny bags and two polythene bags containing four hundred and four kilograms of Cannabis Sativa (Bhang), valued at 808,000/- in a motor vehicle Reg No. KBR 246D in contravention of the said Act.

2. They were tried by the lower court but Simon Waithera Nyutu jumped bail before the trial concluded. The proceedings continued against the Appellant who was placed on his own defence. He was consequently found guilty and sentenced to pay a fine of Kshs 2,424,000 in default to serve 10 years imprisonment.

3. He is aggrieved by the conviction and the sentence and has filed this appeal in which he has raised the following grounds: -i.That the learned trial magistrate erred in both law and facts by convicting the appellant on evidence of PW2 and PW3 on chase and arrest whereas the same was not proved beyond reasonable doubt.ii.That the learned trial magistrate did not appreciate the fact that possession of the alleged bhang was not proved satisfactorily as there was nothing linking the appellant to the recovered bhang (cannabis sativa).iii.That the identification of the appellant as the perpetrator of the alleged offence was not free from the possibility of error.iv.That the learned trial magistrate failed to consider the appellant’s defence and blatantly dismissed the same as mere denial without providing reasons for such dismissal contrary to section 169(1) of the Criminal Procedure Code.v.That the conviction and sentence of the appellant and the entire decision rendered by the learned trial magistrate was opinionated and the said decision was not backed by solid evidence pointing towards the guilt of the appellant.

Submissions 4. The appeal was canvassed by way of written submissions. The Appellant filed his submissions on 29th October, 2021 in which he has stated that the evidence of PW2 and PW3 was not credible. He claimed that PW2 was not involved in his arrest as alleged in the judgement. He stated that PW2 was called later on by the OCPD and informed that a motor vehicle had been arrested at Payi in Mashuru Division. It was his case that during cross- examination PW2 denied that he was the one who arrested him. He argued that it is not clear where the trial magistrate got her evidence in respect of the involvement of PW2 in the purported chase and arrest.

5. In respect to PW3 he argued that there was a mix up of issues in that PW3 stated that he saw the Appellant when the Appellant had been arrested meaning that the Appellant was not in sight but might have been in a hidden place and out of sight. He argued that the evidence of PW8 was in variance with that of PW2 and PW3. It was his case and from the testimony of PW8, at the time of arresting the 2nd accused PW8 was alone with the assistance of the members of the public. It was his case therefore that the reliance placed by the trial court on the evidence of PW2 and PW3 of a chase and arrest was contradictory and inconsistent.

6. He submitted that the alleged bhang was found inside motor vehicle KBR 246D; that PW1 the owner of the said motor vehicle stated that he hired out the vehicle to the 1st Accused and that he did not know the Appellant. He argued that there was no evidence to link him with the said motor vehicle or the co-accused and that there was absolutely no nexus created or any other connection whatsoever that could link or implicate the Appellant to the offence, either directly or indirectly.

7. He submitted that the arresting officers did not know him personally before the arrest and no evidence was tendered in court as to his identity with regards to his clothes that he wore during the chase. He further argued that from the prosecution witnesses only two identified him, PW3 and PW8 but as submitted earlier their evidence varied and therefore not credible. He further submitted that in a chase the person giving the chase would only be able to see the back of the runner until the runner stops or until the chaser outruns him or until he catches up with him and that from the evidence of PW3 the suspect hid in an anthill, meaning that at some point he lost sight of the suspect.

8. He submitted that the evidence of the arresting officers indicated that they were assisted by members of the public, yet the prosecution did not call any member of the public as a witness. It was his argument that such a witness would be a material witness who would have given an eye witness account of the arrest and would have aided the credibility of the arresting officers’ evidence.

9. The appeal was opposed by the prosecution. The prosecution submitted that 9 witnesses testified for the prosecution and their evidence established the element of trafficking, that the substance was narcotic/psychotropic substance and the identity of the perpetrators.

10. The Respondent has submitted that there is evidence from PW1 that he hired out his motor vehicle Registration No. KBR 246D to the 1st accused in the lower court matter and that PW3, PW4 and PW8 all testified on how the Appellant and the co-accused were arrested and how a search on the vehicle they had been in resulted in the recovery of the bhang which was produced as exhibits.

11. It was further submitted that the recovered substance was subjected to examination by PW5 a Government Analyst and a report dated 19th August, 2015 prepared. It was produced as Exhibit 6A; that the substance was confirmed to be bhang which under Schedule 1 of Narcotic Drugs & Psychotronic Substances Control Act is classified as narcotic drug.

12. It was submitted that the identity of the perpetrators, being the Appellant and his co-accused was confirmed through the evidence of PW3 and PW8 who testified to chasing the motor vehicle in issue and pursuing the Appellant and his co-accused when they jumped out of the motor vehicle and begun running on foot and that PW8 arrested the 1st accused while PW3 arrested the 2nd accused, the Appellant herein. It is the case for the Respondent that there is no discrepancy in the evidence touching on the identification of the perpetrators.

Analysis and Determination 13. It is my duty as the first appellate court is to re-consider all the evidence adduced in the trial court and re-evaluate it with a view to reaching an independent conclusion. I caution myself that I did not have the opportunity of observing the witnesses giving evidence and I have given allowance for that.

14. I have read the evidence PW3, APC Antony Kamau, who stated that they were called by members of the public that there was a vehicle that had bhang. That they went there, found the vehicle No. KBR 246D, a Voxy and chased it; that the occupants got out of vehicle and ran away on foot; that they gave chase and fired in the air; that the 2nd accused (Appellant) was arrested behind an anti-hill while the 1st accused was arrested at the centre. Evidence shows that the 1st accused was the driver of that vehicle and had the keys to it; that he opened the vehicle and inside was found sacks of cannabis sativa.

15. I have read the evidence of PW8 that on 17th August, 2015 the police received information that there was a motor vehicle with bhang; that they went to the road and stopped the said vehicle but it did not stop; that they followed the motor vehicle to the river; that the 2nd accused (Appellant) and another ran away and they chased them; that he fired in the air; that Cpl Karata took care of the motor vehicle while PW3 and PW8 gave chase; that he arrested David Nyutu and Kamau arrested Simon Nyutu; that they were helped by members of the public and that they took them where they had left the motor vehicle where 12 bags of bhang and yellow papers full bhang were found.

16. I do not find any inconsistencies in the evidence of the arresting police officers. I do not believe the defence of the Appellant that he was arrested as he was looking for charcoal to buy. I therefore find no fault with the lower court for finding the evidence of the arresting officers as credible.

17. On the ground of possession, it is the appellants argument that from the evidence adduced he was not found in actual possession of the said bhang. “Possession” is defined under Section 4 of the Penal Code as follows:“a.“be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other personb.If there are two or more persons and any or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them."

18. Further, Black`s Law Dictionary 10th Edition defines the term possession to mean –“The fact of having or holding property in one’s power, the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of the claim to the exclusive use of a material object. Something that a person owns or controls.”

19. In Peter Kinyua Ireri v Republic [2016] eKLR the Court of Appeal stated that Section 4 of the Penal Code has been construed in numerous decisions of that Court as defining actual physical possession as well as constructive possession. I am satisfied that the Appellant and his co-accused in the lower court were found in possession of narcotic drug, being bhang. This ground of appeal has no merit.

20. The Appellant has argued that the evidence adduced did not support the charge of trafficking. The term “trafficking” is defined in section 2 of the Narcotic Drugs and Psychotrophic Substances (Control) Act to mean -“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.”

21. From my analysis of the evidence I agree with the trial court on the issue that the Appellant was found in possession of the bhang and was also guilty of trafficking. I find that the prosecution proved their case on possession and trafficking beyond reasonable doubt. The evidence adduced by PW3 and PW8 is corroborated and reliable on the arrest of the two accused persons and the recovery of the bhang.

22. On the identification of the Appellant and his co-accused, the evidence as already stated was clear that the two were in the vehicle together. The vehicle was stopped but the same refused to stop necessitating the Police to chase and arrest them. In my considered view, there was no error as to the identification of the Appellant.

23. From my analysis and consideration of all the evidence adduced at trial it is clear that the prosecution proved their case beyond reasonable doubt. The appeal before this court therefore lacks merit.

24. I have also considered the submissions that the prosecution failed to call the members of the public who are alleged to have assisted the police to arrest the Appellant and his co-accused in the lower court. It is crucial for the prosecution, in assisting the court to find the truth, to bring all the witnesses to testify but a any number of witnesses will do in as long as the present evidence to prove the case beyond reasonable doubt. In my view, failure to call members of the public who assisted in apprehending the accused persons is not detrimental to prosecution case. I find there is sufficient evidence proving the guilt of the Appellant.

25. After due consideration of all the evidence in the lower court, the grounds of appeal, submissions, the law and cited authorities, it is my view that this appeal has no merit. It is hereby dismissed. The judgment of the lower court is upheld with the result that the Appellant shall continue serving the sentence handed down to him by the trial court.

26. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 8TH DAY OF DECEMBER, 2022. S. N. MUTUKUJUDGE