https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9651

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E040 OF 2025** **PAMELA ATIENO ODIRA…………………….…………..…..…………….. APPELLANT** **VERSUS** **REPUBLIC ……………………………………………………………………. RESPONDENT** ***(Being an appeal against the conviction by Hon J.M KITUKU (SPM) and sentence by Hon. Ivy Wasike (PM) in Kilifi SPM Case No. 590 of 2021)*** **JUDGEMENT** 1. The appellant herein Pamela Atieno Odira, was convicted of the offence of Trafficking in Narcotics Drugs contrary to section 4 (a) of the *Narcotics Drugs and Psychotropic Substance Control Act, No. 4 of 1994*. The particulars of the offence are that on 5 June 2021 at Mnarani area within Kilifi County she was found trafficking narcotic drugs namely *Canabis Sativa* of one hundred (100) rolls of wit 5kgs with a street value of Ksh.200,000 by storing the same in her house. 2. The appellant denied the charges prompting the trial in which the prosecution to called three (3) witnesses. 3. The prosecution’s case was on 4 June 2021, three police officers namely PC Robert Mwanganyi (PW1), PC Edward Onyango (PW2 and PC Mustakur Mohamed (PW3) all based at Kilifi police station received intelligence information from a member of the public that there was a lady at Mnarani area, near double M club who was dealing in narcotics drugs. They were directed to her house and went the same day at about 8.30 pm while dressed in police uniform. On seeing the police officers, the appellant who was standing outside the house on the corridor became suspicious and tried to ran away. She was arrested and led the officers to the house. PW1 conducted a search and found a basket under the bed which had a nylon paper. Inside the nylon paper, he found 100 rolls of dry plant materials which they suspected was bhang. 4. The appellant was escorted to Kilifi police station while the 100 rolls were forwarded to a government analyst who confirmed it was bhang. The prosecution produced a basket (exhibit 1), a nylon paper (exhibit 2), 100 rolls of bhang (exhibit 3), exhibit memo form (exhibit 4) and analysis report (exhibit 5). 5. At the close of the prosecutions’ case, the court found that the prosecution had established a *prima facie* case and placed the appellant on her defence. 6. In defence, the appellant through unsworn testimony, denied committing the offence and stated that the prosecution gave contradictory evidence won where the recovery was made. 7. At the close of the trial, she was convicted and sentenced to a fine of Ksh.500,000 or in default 5 years imprisonment. Aggrieved, the appellant filed the present appeal where she raised the following grounds; 8. The trial court erred in both law and fact by failing to consider contradictions by the prosecution witnesses 9. The trial court erred in both law and fact by failing to find that the prosecution did not prove its case beyond reasonable doubt 10. The trial court erred in both law and fact by failing to consider her defence and mitigation. 1. At the hearing, the appellant argued her appeal orally while the respondent filed written submissions which they relied on. The appellant submitted that she was arrested on 4 June 2021 whereas PW3 said that she was arrested on 3 June 2021. She further submitted that PW1 testified that the exhibits were recovered under the bed, PW2 stated that the exhibits were on the floor while PW1 stated that the exhibits were recovered behind the door. She went on the submitted that there were contradictions in how many rooms the house had with PW1 stating that he did not know if the house had eight (8) rooms, PW2’s testimony was that the house had one room whereas PW3 said that the house is a one-bedroom house. 2. She argued that no photographs were taken from the scene to show the person who recovered the exhibits under the bed and that the house belonged to the appellant. She further contended that no photograph was taken to show that the exhibit recovered from the floor belonged to her and that it was the same house where the exhibit was recovered behind the door. 3. She submitted that the contradictions should be ruled in her favour and urged the court to set aside her conviction and sentence. 4. The respondent relied on the written submissions where it was contended that the prosecution had proved its case beyond reasonable doubt. It was argued that the main ingredients of the offence of trafficking in narcotics was highlighted in the case of ***Gabriel Ojiambo vs Republic (2007) eKLR*** where the court held that the particulars of the chargesheet should state the conduct of an accused person which constitutes trafficking. It was submitted that PW1, PW2 and PW3 clearly demonstrated that the substance recovered from the appellant’s house was bhang which is a narcotic drug and produced evidence to support their testimony. 5. Regarding the sentence, the respondent submitted that it was safe and not excessive considering the fact that the offence of trafficking in narcotics was rampant and had repercussions to the immediate community thus necessitating a deterrent sentence. The court was urged to dismiss the appeal and uphold the conviction and sentence. ***Analysis and determination*** 1. This being the first appeal, the duty of this court is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See ***Okeno Vs R [1972] EA 32.*** 2. The court of appeal, in ***Kiilu & Another V R [2005]1 KLR 174***, stated thus; “*An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”* 1. The court has carefully perused the lower court record including the judgment and the appeal before this Court together with the submissions. The court will therefore deal with the grounds in this appeal more or less together. 2. The appellant was charged and convicted with the offence of trafficking in narcotics drugs contrary to section 4 (a) of the *Narcotics Drugs and Psychotropic Substance Control Act, No. 4 of 1994.* The said law provided thus: *“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. Trafficking is defined under Section 2 of the Act as follows: *“trafficking” means 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. The meaning and implication of the word ***‘trafficking’*** in the Act was comprehensively dealt with by the Court of Appeal in the case of ***Madline Akoth Barasa & Another vs Republic (2007) eKLR*** where the court stated as follows: - *“......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 substance,” 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……...”* 1. The court has reproduced the charge and its particulars elsewhere above in this appeal. The charge sheet was very specific on the form of trafficking in this case. It was ***‘storing’*** cannabis sativa of one hundred (100) rolls of 5kgs at her house. The specific ingredients of the offence in this case that must be proved are; ***that the substance was narcotic drugs, and the appellant was trafficking by storing in her house.*** 1. With first issue, the prosecution was required to prove that the substance was narcotic drugs namely *Canabis Sativa* of 100 rolls weighing 5kgs. Section 2 of the sad Act defines *“narcotic drug”* to mean any substance specified in the First Schedule or anything that contains any substance specified in that Schedule. The First Schedule lists Cannabis (Indian Hemp) and Cannabis resin (Resin of Indian Hemp) as a narcotic drug. 2. PW1, PW2 and PW3 testified that on 4 June 2021 at around 8.30 they went the appellant’s premises at Mnarani area, near double M club within Kilifi County and found her on the corridor near the house. She was arrested led them to the house where a nylon paper that contained 100 rolls of dry plant materials suspected to be bhang were recovered. The substance was confiscated and forwarded to the government chemist for analysis. An Exhibit Memo was produced as exhibit 4. Tests confirmed that the dry substance recovered from the appellant was cannabis weighing 5.35 kgs and a report of government analyst report dated 11 November 2021 (exhibit 5) produced as evidence thereof. The government analyst is duly gazetted as required under Section 67 of the Act. The court finds that this element was sufficiently proved. 3. The second issue is whether it was established that the appellant was trafficking the narcotic drug by storing in her house. The appellant in her submissions pointed out discrepancies on the prosecution witnesses as to where exactly the substance was recovered. From the record, PW1 stated that the substance was recovered under the bed inside the house, PW2 said it was recovered inside the house on the floor while PW3 testified that it was on the right side of the door and not under the bed. The appellant also pointed out discrepancies on the number of rooms in the house. 4. The court is required to reconcile the discrepancies to determine if they go to the root of the case. ***See Vincent Kasyula Kingo vs Republic, Nairobi Criminal Appeal No.98 of 2014.*** 5. In ***Njuki & 4 others versus Republic [2002] 1KLR 771***, the court held that where discrepancies in the evidence do not affect an otherwise proved case against an accused, a court is entitled to ignore those discrepancies as guided by the provisions of section 382 of the *Criminal Procedure Code.* 6. The court has reconciled the discrepancies and finds that they do not go to the root of the prosecution’s case. What is material in the case is whether the substance was recovered inside the appellant’s house as alleged. Evidence by all prosecution witnesses is consistent, cogent and corroborative in establishing that the substance was recovered inside the appellant’s house at Mnarani near double M club within Kilifi County. The appellant did not controvert any of the evidence. In the end the court finds that all ingredients of the offence were duly proved and upholds the conviction. 7. Turning to the sentence, the appellant faulted the court for not considering her mitigation. The Respondent submitted that the sentence is lawful and should be maintained. As stated earlier, the appellant was sentenced to a fine of Ksh. 500,000 or in default 5 years imprisonment. 8. Sentencing is an exercise of discretion by the trial court and an appellate court will not interfere there was a error that renders it prejudicial. Thus, in ***Bernard Kimani Gacheru Vs. Republic (2002) eKLR*,** it was held: *“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”* 1. Section 4 (a) of the *Narcotics Drugs and Psychotropic Substance Control Act, No. 4 of 1994* prescribes a sentence of***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.*** 2. An analysis of the record shows several errors by the trial court; 1. firstly, the court failed to impose a sentence comprising both a fine and imprisonment for life as required by law. 2. Secondly, the court imposed a fine of Ksh. 500,000 which is below the mandatory minimum fine of Ksh. 1,000,000 where the street value is less than that amount. See ***Francis Karioko Muruatetu and another vs Republic; Katiba institute & 5 others (Amicus Curiae) (2021) KESC 31 (KLR).*** 3. Thirdly, the court awarded a sentence of 5 years in default of the fine of Ksh.500,000. The *Narcotics Drugs and Psychotropic Substance Control Act, No. 4 of 1994* did not set the period of imprisonment in case of default of a fine. The default clause in this instance is Section 28 (2) of the *Penal Code* which prescribes a maximum default period of 12 months for fines above Ksh. 50,000. 3. It is thus apparent that the above errors call for interference by the court. Section 354 (3) of the *Criminal Procedure Code* empowers this court to vary any sentence on appeal. Variation of the said sentence would require enhancement to a fine of Ksh.1,000,000.00 and life imprisonment. See Section 4 (a) of the *Narcotics Drugs and Psychotropic Substance Control Act, No. 4 of 1994*. 4. However, before exercising such a power the appellant is entitled to prior notice. This would have enabled the appellant make an informed decision as to whether she still desired to proceed with the appeal or abandon it. 5. The court of appeal in ***Samwel Mbugua Kihwanga vs Republic [2016] KECA 281 (KLR)*** held as follows: *“…the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.”* 1. No such notice or warning was given to the appellant. On the other hand, the court observes that that the imposition of 5 years imprisonment in default of the fine is unlawful by dint of Section 28 (2) of the *Penal Code* which limits it to 12 months. ***Final Orders*** 1. In light of the above, the court makes the following orders: - 1. The appellant's appeal against conviction has no merit and is accordingly dismissed. 2. The sentence of a fine of Ksh.500,000 is upheld. 3. The default period of five (5) years imprisonment is set aside and substituted with a default period of twelve (12) months imprisonment. 4. The period of imprisonment in default of the fine shall run from 11 January 2024 being the date of conviction. 5. Since the appellant has already served the twelve (12) months default period, she shall be released forthwith unless there is another lawful reason for keeping her in prison custody not connected with this case. **Delivered and signed at Nairobi on this 2nd day of July 2026** **JOSEPH KIPKOECH BIOMDO** **JUDGE**