[2023] KEHC 24882 (KLR)

Odote v Republic (Criminal Appeal E011 of 2021) [2023] KEHC 24882 (KLR) (Crim) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24882 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E011 of 2021

DR Kavedza, J

November 7, 2023

Between

Judith Atieno Odote

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence delivered by Hon. C.M Njagi on 16th February 2021 at JKIA Chief Magistrate’s Court criminal case no. 114 of 2018 Republic vs Judith Atieno Odote & 2 others)

Judgment

1. The appellant jointly with others not before this court was charged and after a full trial convicted on two counts of the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994. She was sentenced to pay a fine of Kshs 7,179,300 in default to serve 12 months imprisonment. In addition, she was also sentenced to serve a term of fifteen (15) years imprisonment in Count I. In count II, she was sentenced to pay a fine of Kshs 5,189,490 in default to serve one-year imprisonment. In addition, she was sentenced to serve 15 years imprisonment. The sentences were to run consecutively.

2. Being dissatisfied, she filed an appeal challenging her conviction and sentence. In her petition of appeal, she challenged the totality of the prosecution’s evidence against which she was convicted. She also challenged the sentence as being harsh and excessive.

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 v Republic [1973] EA 32).

4. The prosecution called sixteen (16) witnesses in support of their case. No 83730 Corporal Mary Ayimba Agono an officer based at the Anti-Narcotic Drug Unit at JKIA. She was on duty at JKIA together with PC Waki (PW 7) and CPL Murunga (PW 2) of the Transnational Organised Crimes Unit A when they received information that there were two individuals at the airport suspected of trafficking in narcotic substances. They intercepted Bernard Otieno and Mary Nyaguthie who were the appellant’s co-accused persons. They confiscated their passport and arrested them. Mary complained of stomach pains and vomited 4 pallets of suspected narcotic substances. 9 other pallets were emitted anally. PC Winfred Kariuki (PW 3) escorted Mary to the toilet where she emitted the pellets. This was also witnessed by CPL Munialo (PW 5) and CPL Opiyo (PW 6).

5. The two had arrived in motor vehicle registration number KCQ 357W. They were escorted to the said motor vehicle where the appellant was found in the company of Boaz Ouma who was the driver. The said motor vehicle was searched by CPL Norah Ekodir (PW4). This was done in the presence of PC Munyao (PW 8). PW 4 told the court that photocopies of the passports of Bernard and Mary were recovered in the appellant's handbag.

6. PW 1 , PW 2, and PW 7 escorted the appellant to her home in Donholm estate. A search was conducted and a Dell Laptop was recovered. PW 1 told the court that photocopies of the passports of Bernard and Mary were recovered in the appellant's home.

7. The process of searching the suspects was documented by the scene of crime officer who took photographs. Weighing of the recovered substance was conducted by CI Irungu Ndegwa (PW 9) in the presence of the accused persons. An observation sheet and seizure notice were also done. Inspector Ligaka (PW 14), the scene of crime officer photographed the weighing and sampling processes. This was done in the presence of the suspects including the appellant herein. PW 12, the government analyst did a sampling of the 49 pellets and 59 pellets recovered. The sampling was done in the presence of the accused persons. The preliminary tests conducted indicated that the substance recovered from the Appellant contained heroin, a narcotic substance.

8. Assistant Superintendent of Police George Mutiso (PW 13) a duly gazetted officer requested to value the narcotic substances that had been seized. He relied on the government analyst report and the weighing certificates. He prepared two valuation certificates which were produced into evidence. He valued the narcotic substances at Kshs 1,729,830 and Kshs 2,393,100 respectively.

9. Silvia Atieno Alang’o (PW 10) testified that she was the registered owner of motor vehicle KCQ 357W. It was her evidence that she had sold the car to the appellant at a cost of Kshs 1,400,000. The appellant had only paid Kshs 800,000 and was to clear the balance in three weeks. However, the appellant disappeared, only to find her remanded at Langata Women's Prison and the vehicle impounded at JKIA Police Station. Her evidence was corroborated by Jacob Ragot (PW 11) her husband who was also involved in the transaction. A sale agreement was produced to that effect.

10. Sergeant Dickson Omumia (PW 15), the lead investigator, provided a synopsis of the testimony presented by the prosecution witnesses. He informed the court that copies of passports belonging to the first and second accused individuals, who were discovered in possession of the narcotic substances, were located in the possession of the appellant. During cross-examination, he clarified that the appellant was not embarking on an international journey but was found in the motor vehicle from which the first and second accused individuals had disembarked.

11. CI Samson Ogutu (PW 16) a gazetted officer of the DCI Forensic Imaging and Acoustics Unit told the court that he was requested to assist in retrieval of CCTV footage. He retrieved CCTV footage from JKIA terminal IA. The footage captured the appellant in the company of her co-accused arriving at the terminal in a white motor vehicle.

12. After the close of the prosecution's case, the appellant together with her co-accused person were put on their respective defences. Bernard Otieno (DW 1) denied knowing his co-accused or emitting pellets of heroin. He maintained that he was innocent and it was a case of mistaken identity.

13. Mary Nyagithi (DW 2) told the court that on the material day, she was heading to Mauritius when she was arrested at the airport. She denied any knowledge of the drug trafficking.

14. Judith Odote, (DW 3) the appellant herein told the court that on the material date, she was escorting her cousin to the airport when she was arrested at the parking lot. The arresting officers later escorted her to her home in Denholm but nothing was recovered. She maintained her innocence.

15. Boaz Ouma (DW 4) testified that he was arrested at the airport on drug-related charges which he was not aware of. He only met the other accused persons at the station upon his arrest.

16. The trial court acquitted Boaz Ouma and convicted the other accused persons. After mitigation, they were sentenced accordingly.

Analysis and determination. 17. In her petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which she was convicted. She submitted that there was no evidence tendered by the prosecution to prove the elements of actual or constructive possession. She maintained that she was not in possession of the narcotic drugs. The prosecution witness failed to link her to the drugs either in person or on her property.

18. In addition, she submitted that her links to the case were merely circumstantial which was not sufficient to justify a conviction. She cited the case of Sawe v Republic [2003] KLR 234 in support of her position. She urged the court to quash her conviction.

19. 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;”

20. 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…”

21. In Gabriel Ojiambo Nambesi v 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 clearly 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.”

22. In this particular case, the prosecution contended that the appellant was involved in the trafficking of a narcotic substance. According to the evidence presented, the appellant was apprehended at Jomo Kenyatta International Airport as part of an operation guided by intelligence. The arrest took place right after the appellant had dropped off two individuals. Subsequently, these two individuals were arrested upon being discovered in possession of narcotic substances. Witnesses PW 1, PW 2, and PW 3 informed the court that they had received intelligence indicating that two passengers at the airport, namely Bernard Otieno and Mary Nyaguthie, were suspected of being involved in narcotic substance trafficking. Both suspects were taken into custody, and a search was conducted. Later, Mary Nyaguthie was found to have expelled 13 pellets containing a substance suspected to be narcotic in nature.

23. Police followers followed up with the appellant and their driver, Boaz Otieno, who had transported them to the airport. A search of the appellant's handbag revealed photocopies of passports belonging to Bernard and Mary. Subsequently, a search was also conducted in the appellant's residence, although it did not yield anything related to the case.

24. The prosecution adduced evidence that established that the substance found in Mary’s possession was a narcotic substance within the meaning ascribed to the term by Section 2(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act and the 1st Schedule thereof. PW 12, the Government Analyst, testified that he conducted a preliminary test of the substance recovered from Mary. The test confirmed that the substance contained heroin. He also conducted a further elaborative test at the Government Chemist and after his analysis, he confirmed that the substance found was heroin.

25. In her defense, the appellant refuted any involvement in the trafficking of the narcotic drugs and contended that the prosecution witnesses failed to establish a connection between her and the narcotics. Witness PW 4 and PW 8 testified that the appellant arrived in a motor vehicle bearing registration number KCQ 357W. Witnesses PW 10 and PW 11 affirmed that they had previously sold the said motor vehicle to the appellant approximately one month before her apprehension, with a sales agreement presented as evidence of this transaction. After a search, the appellant was discovered in possession of copies of passports belonging to the other accused persons found in possession of the narcotic drugs.The search of her residence did not yield any significant findings. Consequently, the sole linkage to the narcotic drugs is through the aforementioned passport copies found in her possession

26. The sole nexus between the appellant and the narcotic drugs in question lies in her presence alongside the 1st and 2nd accused persons at the airport. Additionally, she was discovered in possession of photocopies of their passports at the time of her arrest. The prosecution encountered challenges in establishing the foundation for the appellant's charges. Witness PW 1's testimony contradicted the accounts of PW 4 and PW 8 concerning the location where the passport copies were discovered. While she asserted that they were found in her residence, the others testified to their discovery in her handbag. The question is whether the mere presence of passport copies belonging to the accused individuals who were associated with the narcotic substance emission will suffice to establish a connection between the appellant and the offence. Does the evidence on record satisfy the requirements in relation to the appellant herein who was convicted of trafficking heroin? In my assessment, this evidence is circumstantial.

27. It is common ground that no eyewitness account or direct evidence connected the appellant to the drug trafficking charge. The only evidence available was circumstantial evidence upon which the trial court was convinced to link the appellant to the offence. Circumstantial evidence is evidence of surrounding circumstances from which an inference may be drawn as to the commission of a criminal offence. It is trite that such evidence can sustain a conviction wherein it meets the threshold surmised by the Court of Appeal in Musili Tulo v R [2014] eKLR, as follows:i.The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;ii.Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;iii.The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and no one else.

28. Further, in the case of Abanga alias Onyango v Republic, Court of Appeal, 32 of 1990, stated that;“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests i.e. the circumstances under which inference of guilt is sought to be drawn must cogently and should be of a definite tendency unerringly pointing towards the guilt of the accused ….. the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

29. The question that arises is whether the evidence presented in this case satisfies the aforementioned criteria? I am aware that merely retrieving documents from the appellant, which belonged to the co-accused, does not in itself create a presumption of guilt. Furthermore, providing transportation to individuals involved in the alleged offense does not establish a sufficient connection between the appellant and the offence of trafficking of narcotic drugs. When examining the circumstances surrounding the appellant's arrest, along with other evidence presented by the prosecution, it becomes apparent that there are significant gaps in their case.

30. For instance, what is the link between the appellant and the other accused individuals? Has any connection been established between the appellant and the confiscated narcotics? How exactly was the appellant involved in any aspect of the drug-related activities, such as importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery, distribution, or any other aspect of drug trafficking related to the recovered narcotics?

31. It is not the court's role to fill these gaps in the prosecution's case. When considering the prosecution's evidence as a whole, it should leave no room for doubt about the involvement of the appellant in the commission of the offence. Importantly, it behoves the prosecution to prove that the appellant had knowledge that the persons she took to the airport were in possession of the narcotic drugs. The search conducted on herself and her residence did not lead to the recovery of any narcotic substances. Additionally, there were contradictions about where the copies of the passports were recovered. PW 1 contradicted the evidence of PW 2, PW 3 and PW 7 testifying that the passports were recovered in her residence and not her home. Even assuming that she was found in possession of the copies of the passports, how does that link her to the recovered narcotic drugs? It was incumbent upon the prosecution to form a complete chain of events that would leave no doubt to the guilt of the appellant.

32. How then did the learned trial magistrate determine the ingredient of knowledge? Devlin J, once said in a case of Roper v Taylor’s Central Garages [1951] 2 TLR 284 that :-“There are I think three degrees of knowledge which it may be relevant to consider in cases of this kind. The first is actual knowledge which the justices may find because they infer it from the nature of the act done for no man can prove another man’s state of mind, and they may find it even when the defendant gives evidence to the contrary.They may say we do not believe him, we think that that was his state of mind. They may feel that the evidence falls short of that, and if they do they have then to consider what may be described as knowledge of the second degree, whether the defendant was as it has been called, shutting his eyes to an obvious means of knowledge. Various expressions have been used to describe that state of mind.The respondent deliberately refrains from making inquiries, the result of which he might not care to have.”The third kind of knowledge is what is generally known in law as constructive knowledge, it is what is encompassed by the words “Ought to have known, in the phrase knew or ought to have known......” It does not mean actual knowledge at all. It means that the defendant had in effect the means of knowledge.”

33. The learned trial magistrate drew an inference that the appellant knew the existence of the heroin and participated in its transportation. In contrast to the learned trial magistrate, I do not think there was such evidence not even a suggestion of it. It is the obligation on the prosecution to establish that the appellant had knowledge and with that knowledge participated in the commission of the offence. There was no evidence of actual knowledge produced before the trial court. It would however appear to me that the trial court relied on the presumption, although unwittingly, that the appellant ought to have known or that she had the means of knowing her co-accused’s were in possession of the narcotic drugs.

34. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused. Therefore, I conclude that the circumstantial evidence presented in this case does not meet the required threshold. The end result is that the prosecution failed to prove beyond reasonable doubt that the appellant was involved in the trafficking of the narcotic drugs, namely heroin.

35. As such, I allow the appeal, quash the conviction, and set aside the sentence imposed. I order that the Appellant be set at liberty unless otherwise lawfully held.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF NOVEMBER 2023. ......................D. KAVEDZAJUDGEIn the presence of: