[2015] KEHC 196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO. 19 OF 2013

(Being an appeal arising out of the original Conviction and Sentence in Criminal Case No.336 of 2011 by Hon. J. Gandani Senior Principal Magistrate court Mombasa )

PAUL MATOLO OLARE…………………….............……….…APPELLANT

Versus

REPUBLIC ……………………………………………………RESPONDENT

JUDGEMENT

The Appellant was charged with 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.

In the charge sheet particulars of the offence were that on 25. 1.2011 at Mishoromoni village, Kisauni area at Mombasa District of Coast Province he was found trafficking in narcotic drugs by storing 62. 93 grammes and 88 sachets of Heroin with a street value of Ksh.172,000 in contradiction of the Act.

The Appellant stood trial where prosecution adduced evidence by calling five (5) witnesses in support of the charge. The Appellant was placed on his defence, where he gave a sworn testimony and called two witnesses. At the close of the trial, learned Magistrate considered the evidence found him guilty, convicted and sentenced him to pay a fine of Ksh.1,000,000 in default ten (10) years imprisonment.

The Appellant dissatisfied with the decision of the lower court on judgment and sentence filed an appeal. The Appellant relied on the petition of appeal field on 20. 2.2013 and supplementary grounds of appeal which raised the following issues:

That there was no evidence linking the appellant to the charge.

That the evidence contained material contradictions that should have been resolved in his favour.

That the trial court did not give due consideration to the appellant’s defence.

That the trial court erred in law and fact in convicting the appellant in disregard and in contravention to S 4, 67,75 and 86 of the Narcotic Drugs and Psychotropic substances Control Act 1994.

That the judgement dated and delivered on 6. 2.3013 was totally defective and a miscarriage of justice as it violates S 169 for the Criminal Procedure Code.

That the prosecution evidence in support of the charge was in relation to S 3 as opposed to S 4 of the Narcotics Drugs and Psychotropic substances Control Act 1994.

That the learned Magistrate’s judgement was based on skewed opinions and selective analysis of prosecution evidence.

That the case for the prosecution was not proved beyond reasonable doubt.

That the learned trial magistrate in sentencing should have taken into account appellant financial status, period accused was in custody, that he was first offender, sole breadwinner of the family and a victim of unforeseen circumstances.

At the hearing appellant urged this court to allow him proceed to argue his appeal in person on grounds that counsel Mr. Alundo has been indisposed and unable to attend court. The court on due consideration of the matter and prayer sought allowed appellant to proceed in person.

The appellant submitted and relied entirely on memorandum of appeal and amended supplementary affidavit which raised other grounds in support of the petition.

Mr. Mungai for the state opposed the appeal on both conviction and sentence. He submitted that the appellant was properly convicted from the evidence adduced at the trial court in support of charge of trafficking. He further argued that having been convicted, and trial Magistrate imposed a sentence of a fine of Ksh.100,000 and imprisonment term of ten years. He submitted that the provisions on sentencing under Narcotic Drugs and Psychotropic Act are crafted in mandatory terms. It was his strong submission that the trial Magistrate was lenient in imposing a sentence of ten years when that law provides for life imprisonment.

This being the first appellant court I have a duty to reconsider, analyze, evaluate the evidence and arrive at my own conclusion as to the findings before the trial court. In doing so, I bear in mind that the trial court had the advantage of observing the demeanor and credibility of the witnesses at the hearing of the case.

That duty of the first appellant court is now settled as held in the case of OKENO VS. REPUBLIC (1972) EALT 32, MARK OIRURI MOSE Vs. REPUBLIC 2013 E.K.LRwhere it was stated-:

“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 the appellant court’s own decision on the evidence. The first appellant court must itself weight conflicting evidence and draw its own conclusions (Shant…M. Rdwal Vs. Republic 1957 EA 570(it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusion; it must make it’s own findings and draw 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”

See (PETER V SUNDAY 1958 EA 424”.

The evidence at the trial court:

The prosecution called five witnesses in support of their case. PW1 PFNo.51739 PC Joseph Okugo who works at Central Police Station testified that on 25. 1.2011 left the station in company of PW2 PF 66210 Cpl Hawa Ali Marata, PW3 PF 75997 PC Robert Mwaru and with community Police members for Mishoromoni area,Kisauni. In his testimony they were acting on information received from an informer that there were drug traffickers in the area. He further told the court that they were directed to a house near Sunshine Academy which they knocked to gain entry. On the house being opened by the occupant whom he identified as appellant in this case they conducted a search. The quick search according to his testimony was in connection to materials on the table. In the house they found glass screen, 2 bottles of substances, 4 razor blades, pieces of frill Paper, 88 sachets of brown powder. They recovered the items and arrested the appellant for further investigations and indictment.

On cross-examination by counsel Mr. Alando for appellant PW1 confirmed that their operation at Mishoromoni area was through an informer. In the house where they conducted an operation only appellant was inside. He denied that appellant was arrested elsewhere in a shopping area and not his house. It was further his testimony that appellant was initially booked at Makupa Police station but on 26. 1.2011 transferred to Central Police Station to finalize investigations.

P.W2 PF.66210 Cpl Hawa Ali Marata attached to Central Police Station testified that on 25. 1.2011, she was in company of PW1 on an assignment at Mishoromoni village. It was in a house occupied by the appellant that they entered and recovered 88 sachets of brown substances, 2 bundles of brown substances, bundle of nylon paper, spoons and a big glass. On being shown the items she duly identified them to court as the ones recovered at the scene. On being cross-examined by Counsel Mr. Alludo, she confirmed that initial entries of the exhibits had discrepancies to exact numbers. She however gave testimony that a recount corrected the differences from 87 sachets to actual 88 sachets of brown powder.

PW3 PF No.75997 Pc Robert Mwaru testified that on 25. 1.2011 was on duty at Central Police Station where they left for an operation with PW1, PW2 at Mishoromoni village. It was his testimony that acting on information they knocked and entered a house occupied by appellant. The appellant was alone, opened the house where they recovered items suspected to be Narcotic drugs. The items recovered were identified and he gave identification of them.

According to his testimony they were seven people who conducted the operation. PW4 PF.No.62809 AG/P Samir Athman Yums who does investigations at Central Police Station was seized of the case from PW1, PW2 and PW3. PW4 confirmed to the court that he received the appellant and recovered materials from his house suspected to be Narcotic drugs. According to his testimony the appellant had been found with 88 sachets of powdery substances, four blades, transparent polythene papers and foil papers. PW4 further testified that he prepared an exhibit memo form and escorted the substances to the government chemist. After the chemical analysis was conducted and the brownish powder confirmed to be a Narcotic drug Heroine, PW4 confirmed that the substances were weighed by the government chemist and found to weigh 62. 93 gms; with a street value of Ksh.172,000.

PW5 – George Lawrence Olunda a Government Analyst testified that he had on 27. 1.2011, received from PW4 an envelope marked P.MO consisting yellowish powder. He conducted analysis and found that both yellowish and brownish substances were Heroin, in a narcotic drug. He prepared this report which was produced in evidence.

The appellant elected to give a sworn testimony and called two witnesses. He denied the charge of trafficking and that he was in the alleged house as stated by the prosecution witnesses on the material day. His version being that on 26. 1.2011 he left the house to a stage nearby to pick one Jebriano Obend D.W 2 expected to visit him. They both walked to the house but left DW2 inside the house as he went back to the shop to buy bread and milk. It was at the shop that some men totaling about nine arrested him and was detained at Makupa police station. On the same night he was transferred to Central Police Station and on 27. 1.2011 charged before court. He denied that the recovered exhibits were found in his house. In his testimony he alluded the items to one Salim Khatimy Mohamed. In support of his defence, he provided OB 95 25. 1.2011 to prove the entries which related to a different person.

D.W 2- Maureen Akinyi Matolo wife to DW1 testified that on 25. 1.2011 while at home they were expecting a visitor D.W3. She confirmed that DW1 left the house for the stage to pick the visitor. When the visitor was settled DW1 went back to the shop to buy groceries. It was her testimony that DW1 never came back. She testified that they decided to follow up to find out his whereabouts. According to her testimony DW1 had been arrested and taken to Makupa Police Station. She denied that PW1,PW2 and PW3 ever went to their house on 25. 1.2011.

DW3 Gyvira Otieno Juma testified that on 25. 1.2011 he had gone to visit appellant at Mishoroni. The appellant picked him from the stage and was taken to the house. He further confirmed that appellant left for the shop but did not return back. He later learnt that appellant had been arrested and was at Makupa Police station.

After summarizing the prosecution evidence and defence the learned trial Magistrate made her conclusion and pronounced her verdict as follows:

“it is my finding that the prosecution has proved it’s case against the accused person here that the accused was found trafficking the aforementioned drugs by way of storing. I now convict the accused under S 215 CPC. On sentencing mitigation noted. Offence is serious and having denied I now sentence the accused as follows; He is to pay a fine of Ksh.1000000 (one million) in Default one year imprisonment. Further he will serve 10 years imprisonment in default of payment of fine he will serve a total of eleven (11) years imprisonment.”

The effect of the foregoing grounds of appeal by the appellant is that the merit of the conviction and sentence are in issue for determination by this court. I will therefore embark on my duty to analyze the evidence, and subject it to a fresh and exhaustive examination so as to draw my own conclusions on the matter. In doing this I will take cognizance safeguards set out in the case of OKENO Vs. REPUBLIC 1972 EA32.

I have carefully reconsidered and evaluated the evidence a fresh to draw my own conclusions. The trial court record has been perused and considered the judgement of the learned trial Magistrate. The Appellant relied on memorandum of appeal and grounds therein together with brief submissions at the hearing of the appeal. Counsel for the state submitted and contested the appeal.

After analyzing all the above taking into account relevant provisions of the law I set the following issues that arise for determination.

Whether the charge sheet against the appellant was defective.

Grounds (ii) (iii) (iv) (v) (vi) (vii) (xi) (xii) (xiv) can be grouped together under the issue whether the prosecution proved its case beyond reasonable doubt against the appellant.

Whether the trial Magistrate erred in law in convicting the appellant in total disregard of section 4,67,75 and 86 of the Narcotic Drugs and Psychotropic Substances Control Act 1994.

Whether the judgement delivered on 6. 2.2013 violated S 169 of the Criminal Procedure Code.

Finally on the issue sentenced of imposed upon the appellant.

On issue No.1 the appellant was charged with the offence of trafficking in Narcotic Drugs and Psychotrophic substances control Act No.4 of 1994. The particulars being that on 25. 1.201 at Mishomormi village in Kisauni Location of Mombasa District of Coast Province trafficated in narcotic drugs by storing 62. 93 grammes and 88 sachets of Heroin with a street value of Ksh.172,000 in contravention of the Act.

The definition of what constitutes trafficking is provided for under S 2 of the Act. Trafficking means;

“The importation, exportation, manufacturing, buying, sale, supplying, storing, administering, conveyance, delivery, or distributing by any person of any Narcotic drug or Psychotropic substance or any substance represented or held out by such person to be a Narcotic drug or Psychotropic substance”.

A close look at the evidence in the instant case demonstrates that police officers PW1, PW2, PW3 in company of community policing left for Mishoromoni village. Through a tip off they proceeded to the appellant house not gaining forced entry. The appellant had locked himself inside. On entering the house PW1, PW2 and PW3 testified that they noticed some materials on the sitting room. The items recovered included 62. 93 grammes and 88 sachets of Heroin.

The appellant was arrested and charged with the offence of trafficking by storing. In this regard appellant was aware of actual elements of the offence. The trial court while considering the ingredients of the offence of trafficking dealt with the act of storming. It is my view therefore that the charge as drawn specified the charge with necessary particulars in compliance with Section 134 of CPC. The prosecution embarked to adduce evidence to prove trafficking by storming against the appellant. I find no evidence from the record that the appellant was embarrassed or prejudiced by the nature of the charge.

Secondly this appeal raises a fundamental issue in regard whether the learned trial Magistrate complied with S 67, 74(a), 75 and 86. S 67 of the Act requires the Minister responsible for Health to a notice in the gazette designate an analyst duty qualified. The analyst is to analyze and examined any substance and result of analyses be presented and admissible as evidence. In this case it is PW5 Chief Chemist gazetted as analyst for Mombasa. The qualifications he posses are clearly spelt out. He analyzed the drugs and substances recovered by preparing a report produced as evidence. I find not contravention with S 67 of the Act by the trial court

Whether S 74(a) of the Act was complied with, the said section requires that the drugs or substance be weighed by an authorized officer before samples are released to the government analyst. S 7A(i) provides as follows:

“where any narcotic drug or Psychotropic substance has been seized and is to be used in evidence; the Commissioner of Police and Director of Medical Services or a Police or Medical Officer respectively authorized in writing by either of them for purposes of this Act (herein referred to as authorized officers shall where practicable in the presence of :-

Any person intended to be charged in relation to the drugs in this section referred as the accused person

…….

……

…….

Weigh the whole amount seized and thereafter the designated analyst take and weigh more samples of such Narcotic drug or Psychotropic substances and take away such sample or samples for purposes of analyzing and identifying them.

After analysis and identification of the sample or samples taken under sub(1) the same shall be returned to the authorized officer together with designated analyses certificates for introduction at the trial of the accused person.

In the instant case PW4 Ag. Inspector Samir the Investigating Officer received the seized Narcotic drugs and substances from PW1, PW2, PW3. He took possession of the drug and prepared exhibit memo and forwarded the same to Government analyst. PW4 was supposed to comply with the provisions of S 74 (a) of the Act.

Section 74(a) provides that the weighing of the drugs be done by an authorized officer. The definition of an authorized officer is provided for in section 86(2). In this section proper officer means the officer authorized by the Minister by notification in the Gazette for the purposes of this section.

PW4 evidence does not indicate anywhere that the drugs were weighed in his presence and appellant. S 74(a) provides specifically that the authorized officer do take part in the exercised of weighing. In this trial, I find no evidence that an authorized officer weighed the drugs. From the record and testimony of PW4 he did not provided any evidence in writing that he was an authorized officer to carry out the exercise of determining weight.

In the charge sheet appellant was found trafficking by storing 62. 93 grammes and 88 sachets of Heroin with a street value of Ksh. 172,000. I have evaluated the evidence by Prosecution witnesses PW1, PW2, PW3 and PW4, nowhere in their testimony any attempt made on how the value of Ksh.172,000 was arrived at. There is no evidence adduced by the prosecution to support the street value stated in the charge sheet. S 86 of the Act provides as follows;-

“where in any prosecution under this Act any fine as to be determined by the market value of any Narcotic drug, Psychotropic substance or prohibited plant, a certificate under the hand of the proper officer of the Market Value of such Narcotic drug or psychotropic substance shall be accepted by the court as premafacie evidence of the value thereof”.

The analysis and evaluation of the evidence by the prosecution shows non-compliance with S 74(A), S 86 of the Act. The application of the procedures set out are mandatory and failure to comply is fatal to the prosecution case.

In view of ongoing unfolding I am inclined to cite the persuasive authority in the case of OKETHI OKALE & 8 OTHERS Vs. REPUBLIC HCCR APP NO.179 of 1964. It was held:

“In every criminal trial a conviction can only be based on weight of the actual evidence adduced. The burden of proof is throughout on prosecution ad it is the duty of the trial Judge to look at the evidence as a whole”.

The Upshot upon careful analysis of the evidence and applicable law when properly considered did not establish a case against the appellant beyond reasonable doubt. I therefore find the conviction and sentence orders against the appellant unsafe. The appeal has merit and do set aside both conviction and sentence. The appellant is at liberty unless otherwise lawfully held.

Dated, signed and delivered in open court at Mombasa this 30th day of September 2015.

………………………

R. NYAKUNDI

JUDGE

Present:

State counsel

Appellant