https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11781

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E058 OF 2026** REBECCA LALNUNMAWII SAILO……………………….………....APPELLANT VERSUS REPUBLIC………………………………………………………….RESPONDENT *(Being an appeal against the original conviction and sentence delivered by Hon. Njeri Thuku (S.P.M) on 30th January 2024 at JKIA Chief Magistrate’s Court Criminal Case no. E027 of 2022 Republic vs Rebecca Sailo Lalnunmawii)* **JUDGEMENT** 1. 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. The particulars are that on 7th March 2022 at departures screening area in Jomo Kenyatta International Airport within Nairobi county, jointly with others not before court, trafficked by conveying a drug namely heroin to wit 5042.15 grams with a market value of Kshs.126,450/= while concealed in false sides of dark grey suitcase. After a full trial, she was convicted and sentenced to serve thirteen (13) years imprisonment and pay a fine of Kshs.45,379,350, in default to serve one year in prison. The default sentence to be served concurrently. 2. Being aggrieved, she filed an appeal challenging her conviction and sentence. The appellant in her written submissions, she raised the following grounds: that the prosecution failed to prove their case beyond reasonable doubt, that the trial court erred in law and fact by concluding that the she was the owner of the suitcase which contained the drug, that procedural safeguards regarding weighing and sampling were not complied with, that there was absence of CCTV footage from the scene of the crime and, that the sentence imposed was excessive and disproportionate. 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 ten witnesses in support of its case. PW2, Joseph Njagi Nyawira, testified that on the material day, while operating an X-ray screening machine, he observed an unclear image of a suitcase. He instructed PW1, Kibet Ngetich, to conduct a physical inspection. After emptying the suitcase, PW1 found it unusually heavy and returned it to PW2 for further screening. Upon rescanning, PW2 observed dense orange material embedded along the sides of the suitcase. He then handed the empty suitcase to the security supervisor, PW4, Pamela Munangwi, who similarly noted that it was heavier than an ordinary empty suitcase and confirmed the presence of the dense material concealed within its sides. 5. When questioned, the appellant maintained that the suitcase contained nothing other than the clothes that had already been removed. PW4 reported the matter to her supervisor, Madam Njeri, and officers from the Directorate of Criminal Investigations (DCI) were notified. They arrived at the scene shortly thereafter. 6. PW3, Corporal Mary Ayimba, testified that upon receiving the report, she proceeded to the scene where she found the appellant together with her luggage, comprising an orange plastic suitcase, a grey suitcase, a grey backpack, two mobile phones, a passport and a yellow fever card. She escorted the appellant to the Anti-Narcotics Unit offices, where a thorough search was conducted. During the search, it was discovered that the grey suitcase had false side panels concealing two packages containing a cream-coloured powdery substance. PW3 prepared an inventory of the recovered items, which was signed by the relevant parties and produced in evidence. PW7, Corporal Charles Kitur, assisted in documenting the recovered exhibits. 7. PW5, Sergeant Violet Khalayi, testified that she weighed the two packages and found them to weigh 2,472.26 grams and 2,569.89 grams respectively, giving a total weight of 5,042.15 grams. She prepared a certificate of weighing, which was signed by the officers present and by the appellant, and was produced in evidence. The samples were forwarded to PW8, Lucy Warukira Wachira, a Government Analyst, who analysed the substance and confirmed that it was heroin. Her report was produced in evidence. PW6, Chief Inspector Elizabeth Lumumba, subsequently valued the heroin at Kshs. 15,126,450 based on the Government Analyst's report. 8. PW9, Denis Owino Onyango, testified that he witnessed the weighing and sampling of the recovered substance by Sergeant Violet Khalayi and Corporal Charles Kitur, and produced the sampling certificate in evidence. PW10, PC James Wafula Kinyua, the investigating officer, testified that his investigations established from the appellant's passport that she was a citizen of India. He stated that the appellant's luggage was seized and she was escorted to the Anti-Narcotics Unit offices for further investigations. He prepared the exhibit memo, notice of seizure and record of seized substances before forwarding the exhibits for weighing, sampling, analysis and valuation. Upon completion of the investigations, the appellant was charged. 9. At the close of the prosecution's case, the trial court found that a prima facie case had been established and placed the appellant on her defence. In her defence, the appellant testified as DW1. She stated that on the material day, while preparing to travel back to India, airport staff stopped her, placed a suitcase before her and instructed her to open it. She maintained that the suitcase did not belong to her and requested that the CCTV footage be reviewed to verify her account. According to the appellant, her request was ignored, after which she was arrested and escorted to the police cells. 10. 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 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:-** 1. **in respect of any narcotic drug or psychotropic substance** **(ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;** 1. The offence of trafficking in narcotic drugs under section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 requires the prosecution to establish that the substance in question was a narcotic drug, that the appellant was in possession or control of it, and that the possession or transportation was unlawful. 2. The evidence first showed that the appellant presented her luggage for routine security screening at the airport. PW2, while operating the X-ray scanner, observed dense orange material embedded along the sides of one suitcase. Acting on that suspicion, he instructed PW1 to conduct a physical search. Although the suitcase was emptied, it remained unusually heavy. PW2 rescanned it and observed the same dense material, while PW4 independently confirmed that the empty suitcase was heavier than an ordinary suitcase. These consistent observations justified further examination and linked the suspicious suitcase directly to the appellant, who maintained that it contained nothing apart from her clothes. 3. The appellant was then escorted to the Anti-Narcotics Unit, where PW3 conducted a thorough examination of the suitcase. The search revealed false side panels concealing two packages containing a cream-coloured powdery substance. An inventory of the recovered items was immediately prepared and signed, while PW7 assisted in documenting the exhibits. The recovery was therefore properly recorded from the outset. 4. PW5 weighed the recovered packages at 5,042.15 grams and prepared a certificate of weighing signed by the officers present and the appellant. PW9 witnessed the weighing and sampling and produced the sampling certificate. The samples were forwarded to PW8, the Government Analyst, who confirmed that the substance was heroin, a narcotic drug under the Narcotic Drugs and Psychotropic Substances Control Act. PW6 subsequently valued the heroin, while PW10 prepared the exhibit memo, notice of seizure and record of seized substances before preferring the charge. The prosecution therefore established an unbroken chain of custody. 5. At the point of interception, she acknowledged that the suitcase contained only her clothes and did not dispute its ownership. Her claim that the suitcase belonged to someone else arose only after the heroin had been recovered. In the absence of any evidence of tampering or a break in the chain of custody, the failure to produce CCTV footage does not undermine the cogent and consistent prosecution evidence. I therefore find that the prosecution proved possession, the identity of the narcotic drug and the integrity of the exhibits beyond reasonable doubt. The conviction of the trial court was safe and is accordingly affirmed. 6. The appellant was sentenced to thirteen (13) years' imprisonment and a fine of Kshs.45,379,350, in default to serve one year's imprisonment, the default sentence to run concurrently. The record shows that the trial court considered the pre-sentence report, the mitigating factors and all relevant sentencing considerations before exercising its discretion. The sentence imposed was lawful and proportionate to the gravity of the offence. I therefore find no basis upon which this Court can interfere with the sentence. 7. Consequently, the appeal lacks merit and is dismissed in its entirety. Orders accordingly. **Judgement dated and delivered virtually this 29th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Appellant Present Mutuma for the Respondent Karimi Court Assistant