[2007] KEHC 1091 (KLR)
The court found that the prosecution's evidence, including the testimony of the assistant chief and corroborating witness, as well as the forensic report confirming the substance as cannabis sativa, was credible, unchallenged, and sufficient to prove the offence beyond reasonable doubt. The appellant's own...
Source-derived case information.
- Citation
- [2007] KEHC 1091 (KLR)
- Parties
- Appellant: Paul Munene Ndege; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 137 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Possession of Narcotics, Evidence Evaluation, Criminal Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Munene Ndege
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the appellant was in possession of cannabis sativa contrary to the law.
- 2 Whether the evidence presented was sufficient and lawfully obtained to support the conviction.
- 3 Whether the failure to call certain witnesses undermined the prosecution's case.
Ratio Decidendi
The court found that the prosecution's evidence, including the testimony of the assistant chief and corroborating witness, as well as the forensic report confirming the substance as cannabis sativa, was credible, unchallenged, and sufficient to prove the offence beyond reasonable doubt. The appellant's own admissions placed him at the scene, and the physical evidence directly linked him to the narcotics. The court held that the failure to call additional witnesses did not undermine the prosecution's case, as the evidence presented was adequate for conviction. The conviction and sentence were therefore upheld, and the appeal was dismissed.
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of 7 years imprisonment are upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Criminal Appeal 137 of 2005
PAUL MUNENE NDEGE………………………………………………APPELLANT
VERSUS
REPUBLIC…………………………………………...……………….RESPONDENT
JUDGMENT
In this appeal the appellant was charged with the offence of being in possession of Cannabis Sativa Contrary to Section 3 (1) and (2) a of Narcotic Drugs and psychotropic Substance Control Act of 4 of 1994. He was convicted and sentenced to 7 years imprisonment. He has filed 4 grounds of appeal.
The prosecution evidence is that the Assistant Chief (PW1) who did not know the accused very well testifies that on 25/6/2005 he was with the chief on a regular patrol along River Nyamidi. There was also one member of their vigilant group. He saw appellant who was sitting on a stone smocking. He was with another person on seeing the assistant chief they wanted to escape but could not cross the river. However, the young man managed to run away leaving behind the paper bag and the appellant. When the paper bag was opened there was inside it 190 rolls of what was suspected as bhang. The bhang was being rolled and the tools for rolling were there. The appellant was arrested and taken to his shop (kiosk) he refused to open to the Assistant Chief. He only opened when APC Njuguna came. On going inside the chief, Assistant chief and APC Njuguna found a paper bag on the counter and when they opened they found 19 stones of bhang. The witnesses were led to the river where the appellant and his companion were sitting by the smell of bhang. The evidence of PW2 corroborates that of PW1 in every respect.
Later the plant materials were submitted to Government Chemist and a report came saying “The plant materials were examined and it is established to be Canabis Sativa included in the Narcotic Drugs and Psychotropic Substances Control Act 4/94”.
In his defence the appellant opted to give unsworn statement. He admitted that he was at the river to take a bath. While there he saw PW1 and PW2 his companion ran away and he was arrested. He complained that the witnesses went to his shop (Kiosk) and after a search was conducted nothing was found.
The facts as stated are correct and also confirmed by the appellant. The 190 rolls of bhang was found with him. 19 stones was found in his shop (Kiosk). I do not find any reason to doubt the evidence of the chief and his assistant. It was not challenged. I do not find that their evidence was in any way obtained unlawfully.
I find no evidence that there was an officer who owned a house where the alleged bhang was said to be and therefore the witness could not be called. The prosecution is within its right to call any witness it wishes. It may omit calling any witnesses at its peril but in this case the evidence offered to court was sufficient to support a conviction. The other person with accused was not arrested, he ran away. Therefore it was not a case of withdrawing the charge against him. The charge was against the Appellant only.
I therefore find the grounds of appeal without merit. The upshot is that the prosecution evidence did proof the offence beyond all reasonable doubt and I find the conviction was based on sound and safe evidence. I find no reason to interfere. I therefore dismiss the appeal.
Dated this 17th July, 2007.
J. N. KHAMINWA
JUDGE
17/7/2007
Khaminwa – Judge
Njue – Clerk
Mr. Kimathi for State
Appellant present in person
Read in open court.
J. N. KHAMINWA
JUDGE