[2024] KEHC 10697 (KLR)

Onyango v Republic (Criminal Appeal E011 of 2024) [2024] KEHC 10697 (KLR) (17 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10697 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal E011 of 2024

DR Kavedza, J

September 17, 2024

Between

John Alex Otieno Onyango

Appellant

and

Republic

Respondent

((Being an appeal against the original conviction and sentence delivered by Hon. Mwaniki Kamau (SRM) on 24th November 2021 at Kibera Chief Magistrate’s Court Criminal Case no. 1314 of 2015 Republics vs John Alex Kamau and 2 others)

Judgment

1. The appellant jointly with others not before this court, was charged with three 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. After a full trial, the appellant was convicted of two counts while his co-accused persons were acquitted. The appellant was sentenced to serve eight years imprisonment. Dissatisfied with the conviction and sentence, the appellant filed an appeal on 19th March 2024.

2. In his appeal, the appellant raised 10 ground coalized into the following main grounds. The appellant challenged the totality of the prosecution's evidence against which he was convicted. In addition, the trial court failed to consider his defence. He urged the court to allow his appeal, quash his conviction, and set aside the sentence imposed.

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 (7) witnesses in support of their case. On March 25, 2015, officers from the Special Crime Prevention Unit in Nairobi, including PC Humphrey Mwenda (PW2), CPL Samson Cheruiyot, PC Naftaly Makori (PW3), PC Onyiri, and PC Munyao, were on a routine patrol when they received information regarding suspected drug trafficking at a residence in Dam II Estate. Acting on this tip-off, the officers proceeded to the location, where they encountered the appellant, who was residing in the servant quarters of the property and was just leaving the premises. The officers instructed him to return to his residence for a search.

5. During the search of his quarters, they discovered a bag containing a whitish substance, which was concealed within three polythene bags beneath his bed. Additionally, a similar substance was found hidden in his right sock.

6. Subsequently, officers from the Anti-Narcotics Police Unit arrived to question the appellant. During the interrogation, the appellant disclosed that the house had been rented by two other individuals, identified as the second accused, Risper Auma, and the third accused, Kevin Oduor. The officers then arrested Risper Auma and brought her to the scene. The appellant further revealed that he had been in communication with the fourth accused, Joyce Akinyi, to whom the narcotics were intended for delivery.

7. Following this revelation, the appellant led the officers to Joyce Akinyi, who was subsequently arrested at a salon near Deep West Resort. Before her arrest, while under police surveillance, the appellant handed the suspected narcotics over to her. A search of Joyce Akinyi’s premises uncovered three additional balls of substances—two white and one wrapped in black polythene. After the search, a search certificate was duly prepared by CIP David Terer, CPL Samson Cheruiyot, and IP Kiptoo.

8. PC Naftaly Makori (PW3) corroborated the testimony of PW2 regarding how they received the tip-off and carried out the search that led to the appellant's arrest. He stated that he remained at the appellant's premises throughout the arrest of the other accused persons. He also told the court that the appellant was allowed to use his phone leading them to the arrest of the other suspects.

9. CPL George Makori (PW4) of the Anti-Narcotics Unit testified that on March 25, 2015, he, along with CIP David Terer, CPL Kenneth Meli, and PC Charles Muthaa, received information about suspects arrested by the Special Crime Prevention Unit at Dam II Estate. Upon arriving at the premises, they found the appellant along with two of his co-accused. He confirmed PW2’s account regarding the suspected narcotics that were recovered. CPL Makori told the court that an inventory of the seized items was prepared and signed by the suspects. Afterward, the suspects were arrested and taken to Muthaiga Police Station for processing.

10. He further explained that the government analyst and crime scene personnel were contacted to assist with the sampling and weighing of the substances. An exhibit memo was then prepared and forwarded to the government chemist for analysis.

11. Dennis (PW1), a government analyst at the Government Chemist headquarters in Nairobi, conducted the sampling and weighing of three sachets received from the Anti-Narcotics Unit, along with an exhibit memo form. One of the samples contained heroin, another contained cocaine, and the third also contained heroin. The heroin sample was brownish in colour, while the cocaine sample was whitish. He testified that the weighing and sampling were carried out in the presence of the appellant, the other accused persons, and PW4. After completing the process, PW1 extracted samples from the packages, which he handed over to a police officer for submission to the Government Chemist as exhibits.

12. Catherine Wanjiku (PW5) testified that, in 2014, the appellant had been searching for servant quarters to rent. He approached her, and after agreeing on the terms, she rented the servant quarters to him for a monthly rent of Kshs. 14,000. The payments were made either in cash or through M-Pesa. She informed the court that the appellant was arrested by police officers on 25th March 2015, and at the time of his arrest, he was accompanied by another woman. Wanjiku also stated that she had no knowledge of any items recovered from the premises during the search.

13. Assistant Superintended (PW6), previously of the anti-narcotics unit, received a call from CPL George Odhiambo on 25th August 2015, informing him of the arrest of the appellant and others with suspected narcotic packages. He was later informed of the positive heroin and cocaine analysis. The first heroin weighed batch weighed 1412 grams valued at Kshs. 4,237,500. The second batch of cocaine weighed 421. 1 grams valued at Kshs. 1,684,400. The last batch of heroin weighed 31. 6 grams valued at Kshs. 94,800. He prepared a Certificate of Valuation, produced as a prosecution exhibit.

14. David Changwony Terer (PW7) the investigating officer summarised the prosecution evidence. He provided testimony consistent with other prosecution witnesses. He detailed his investigative role, including the collection of items from the accused and the preparation of relevant documents. His testimony provided critical insight into the investigation process and formed an integral part of the prosecution's case.

15. After the close of the prosecution case, the appellant together with his co-accused were put on their respective defences. In his defence, the appellant testified that he was a student and denied any involvement in drug trafficking. He recounted that on the day of his arrest, he encountered police officers at his gate, who escorted him back to his house, leading to a search. He told the court that he had left his bag on the bed, but when the officers entered the house, the bag was mysteriously found under the bed, which he found suspicious.

16. The appellant further claimed that the officers planted the narcotic drugs in his suitcase and even handed him additional drugs to frame the other accused individuals. He asserted that he was coerced through violence and beating to force his cooperation with the authorities. Throughout his testimony, he maintained his innocence and insisted that he had been framed.

17. The second accused, Risper Auma, testified that the appellant was her cousin, and Joyce Akinyi was her sister. She recalled that on the day in question, around 1 pm, police officers stormed into the house where she lived with Kevin Oduor (the third accused, now deceased). The officers arrived with the appellant, who had a swollen face. They were ordered to leave their home and were escorted to the appellant’s premises. Throughout the ordeal, Risper and Kevin remained in the car while the appellant was taken inside. Risper maintained that she had no knowledge of why she was being arrested and asserted her innocence.

18. The case against the third accused, Kevin Oduor, abated following his death during the trial.

19. Joyce Akinyi, the fourth accused, testified that on the day of her arrest, she was at a salon when the appellant persistently requested to meet her. Reluctantly, she agreed. When the appellant arrived, his face was swollen, and he was accompanied by two men. They forcefully led her outside and took her to a hotel room, where they demanded she open the doors. Inside, the officers claimed to have found narcotics and demanded money from her, which she refused to give. She was then arrested and charged. Joyce maintained her innocence throughout the trial.

20. The trial court found the appellant guilty and sentenced him accordingly. However, the co-accused were found not guilty and were acquitted.

21. This court has re-evaluated the evidence adduced before the trial court, the Appellant's grounds of appeal as well as the rival written submissions of the parties and there is no need to rehash them. 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:-(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;”

22. The case against the appellant was that on 25th March 2015, police responded to a narcotics tip-off at a residence in Dam II Estate. The suspect was the appellant herein. He was found on the premises where he had rented a servant quarter from PW5 in 2014. A subsequent search of the premises revealed suspected narcotic substances in a bag concealed under the bed. The appellant did not dispute being a tenant on the premises. The Crime Scene Officer documented the scene with photos, reports, and certificates.

23. The suspected packages were weighed with the first batch weighing 1412 grams valued at Kshs. 4,237,500, the second batch weighed 421. 1 grams valued at Kshs. 1,684,400 and the last batch weighed 31. 6 grams valued at Kshs. 94,800. The weighing and sampling process were witnessed by the appellant, and the government analyst, PW1. These were the values of the suspected narcotic substances based on the charge sheet, weighing certificate, and government analyst's report.

24. The chain of custody for the substances recovered in the case against the appellant is well documented through the testimonies of various witnesses. The investigating officer detailed the custody of seized substances through the inventory prepared and introduced the Notice of Intention to Tender Records in Evidence, along with several items recovered from the appellant as evidence. This sequence of testimonies establishes a clear and continuous chain of custody for the substances recovered from the appellant's premises. The chain of custody of the exhibits was clearly explained by the prosecution witnesses.

25. On whether the substance recovered was narcotic, the government analyst PW1 testified that she conducted a preliminary test of the substance recovered from the appellant's premises. The test confirmed that the substance contained heroin. He conducted a sampling exercise and determined the creamish substance to be heroin while the whitish substance to be cocaine. The prosecution adduced evidence that established that the substance found in the appellant'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.

26. In his defence, the appellant denied knowing the existence of the heroin and cocaine in his premises. He argued that he was likely framed by the Anti-Narcotic U2nit. The court considered his defence and found it to be uncredible. In view of the foregoing, I find that the appellant’s defence did not dislodge the cogent evidence adduced by the prosecution. In my view, the appellant’s defence was properly dismissed by the trial court as an afterthought aimed at exonerating himself from the offence.

27. From the evidence of the prosecution witnesses, which was well corroborated, there is no doubt in my mind that the prosecution proved beyond reasonable doubt the offence charged. The conviction is therefore affirmed.

28. On the sentence, the appellant was sentenced to serve eight (8) years imprisonment. During sentencing, the trial court considered that the appellant was a first offender, the pre-sentence report, and his young age before imposing the sentence. The trial court however failed to indicate whether the eight years imprisonment was a cumulative sentence for both counts convicted or for each count. This was in error.

29. I have considered the provisions of sentencing under the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. However, due to the error on the part of the trial court during the sentencing, I hereby make the following orders:i.In count 1 the appellant is sentenced to serve eight (8) years imprisonment.ii.In count II, the appellant is sentenced to serve eight (8) years imprisonment.iii.The sentences shall run concurrently from the date of conviction 24th November 2021.

30. In addition, the appellant also applied for bail pending appeal which was to be determined together with the appeal. However, having dismissed the appeal, the application for bail pending appeal is an academic exercise and has been overtaken by events. It is therefore equally dismissed.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF SEPTEMBER 2024_________________D. KAVEDZAJUDGEIn the presence of:Appellant present in person on the platformMr. Mongare present for the RespondentAchode Court Assistant.