https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/443

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E391 OF 2024** **REPUBLIC VERSUS SYLVIA AUMA OCHIENG AND STANLEY OJIAMBO ACHOKA** **JUDGMENT** 1. Accused persons have been charged with the offence of being in possession of narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic and Psychotropic Substances Control Act No. 4 of 2022. Particulars are that on the 7th Day of October 2024, at Sio Port market in Samia Sub Cunty within Busia County, each of the accused jointly was found to be in possession of bhang, to wit 81 rolls, with a street value of Kshs 1,620, which were not medically prepared. 2. Both accused faced a second count of being in possession of alcoholic drinks which do not conform to the requirements, contrary to section 27(1) (b) as read with section 27(2)(a), section 7(1) (b) and section 27(4) of the alcoholic drinks control Act no. 4 of 2010. Particulars are that on the 7th day of October 2024 at Sio Port Market within Samia Sub County within Busia County, each of the accused persons was found in possession of alcoholic drinks, namely changaa, to wit 2 litres, without necessary authorisation in contravention of the alcoholic control Act No. 4 of 2010. 3. Both accused denied the charges and the prosecution presented its evidence as follows: 4. PW1 89797 PC David Kibet, a police officer attached to Sio Port Police Station, stated that on 7/10/2024 at around 6.00pm, they received intelligence reports of a shop at Sio Port Centre selling bhang. In the company of the OCPD and other police officers, they headed to the said shop where they found 2 people. They searched the said shop and found inside a thermos flask, 81 rolls of bhang and 2 liters of changaa. They arrested both accused. 5. PW2 74583 CPL Isaac Chisika a police officer stationed at Sio Port states that on the material date at around 6.00pm, he was among the team of police officers led by the OCPD Samia who raided a shop acting on information of illegal dealings. They searched the said shop and found 81 rolls of bhang inside a flask and 2 liters of changaa. The two accused persons were inside the said shop. They were both taken into custody, and the exhibits were seized and handed over to the investigating officer. 2nd accused was at the door of the said shop. 1st accused is 2nd accused’s wife. 6. PW3 91872 PC Richard Tanui, the investigating officer herein, stated that on the material date and time, the accused persons herein were found in possession of 81 rolls of bhang and 2 liters of changaa and taken into custody by police officers led by the OCPD. He escorted the said exhibits to the Government Chemist in Kisumu for analysis vide an exhibit memo. Inventory of the seizure was prepared by the arresting officers and signed by the two accused persons. He produced the same as Pex no. 1, he produced the exhibit memo form for each of the exhibits as Pex no. 2 and 3 and the 2 liters changaa in a juice bottle as Pex no. 4, the 81 rolls of bhang as Pex no, 5 inside an orange flask. That the government analyst prepared reports on the two items found in possession of the accused persons herein. He was not part of the arresting team. 7. PW4 Dalmas Kibet Kipsang, a government analyst working at Kisumu Government Chemist, stated to have received the exhibits herein accompanied by exhibit memo forms to analyze the same on 11/10/24 under the escort of PW3 . The flask containing the 81 rolls was marked Sio Port Police Station PCR 932/51/24024bearing the names of both accused persons herein. He marked th exhibit memo form accompanying the said 81 rolls as K878/2024 and went ahead to analyze the 81 rolls presented to confirm if they were cannabis. He confirmed the same as such and prepared a report to that effect which he signed and dated it 11/10/24. He produced the same as Pex no. 7. He went ahead to analyze the contents of the 500ml bottle presented to him marked PCR 27/24 and which he marked P24020/2024 and found the same to contain 17.74 % alcohol content with a volume of 34.01 proof of spirit, which contravened the Alcoholic Act. He prepared a report to the same, which he produced as Pex no. 6. 8. Both accused persons were found with a case to answer and each placed on their defence. 9. The 1st accused elected to remain silent while the 2nd accused’s defence was as follows: 10. DW1 Stanley Achoka, a primary school teacher, stated that on the material day he was at Sio Port Centre at the 1st accused’s shop where he was buying household goods when suddenly, a vehicle with many people approached the shop, people alighted from the said vehicle and came straight into the shop. He was with many other people at the shop but the other customers fled leaving hm alone with the 1st accuse who was the shop keeper. One of the men, who he later got to learn was the OCPD Samia, slapped the 1st accused. He got so angry and confronted him as to why he was assaulting the 1st accused. A confrontation ensued between him and the said OCPD when he demanded that the said officers produce a search warrant to justify their search of the 1st accused’s shop, which warrant the said officers did not possess. Immediately, he and 1st accused were both bundled into a police vehicle and escorted to the police station. he does not know where the bhang and the alcohol came from. He was framed and enjoyed in the suit for standing up against the OCPD by demanding accountability. 11. DW2 Kizito Makokha Okwira testified to knowing the 2nd accused as a teacher. That on the material day, he, in the company of the 2nd accused, was at a shop at Sio Port Centre when they saw a vehicle approach the nearby shop and occupants alight from the said vehicle and enter the said shop. He then saw 2nd accused head to that shop and saw a confrontation ensue between the men who had entered the said shop and 2nd accused. He heard later that the said armed men who had raised the said shop were police officers, and the accused went to rescue the shop attendant who was being assaulted by the said police officers. They saw the accused and the lady shop attendant being bundled up into the police vehicle. ***Analysis and determination*** 1. I have considered the evidence as presented and find the issues for determination as follows: 2. Whether the prosecution proved beyond reasonable doubt that the accused were in possession of the bhang and changaa. 3. Whether the chain of custody and forensic evidence were sufficient. 4. Whether the defence created reasonable doubt. 5. Section 3 (1) of the Narcotic and Psychotropic Substances Control Act No. 4 of 2022 codifies the offence of possession of any narcotic drug which includes cannabis sativa or possession of psychotropic substances. Section 3 (2) (a) provides: “***Any person guilty of an offence under subsection (1) shall be liable:(a)In respect of cannabis, where the person satisfies the court that the cannabis was intended solely for his own consumption, to imprisonment for ten years and in every other case to imprisonment for twenty years***; Section 27 of the Alcoholic Drinks Control Act no. 4 of 2010 provides, ***(1)No person shall—(b)possess,an alcoholic drink that does not conform to the requirements of this Act.*** ***(2)Subsection (1) shall not apply to a person who—(a)is authorized under this Act to be in possession of the alcoholic drink; or*** ***4)A person who contravenes the provisions of this section commits an offence and shall be liable to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding five years, or to both.*** Section 7 proceeds to state , ***(1)No person shall—b)sell, dispose of, or deal with;any alcoholic drink except under and in accordance with a licence issued under this Act.*** 1. Possession is defined under Section 4 of the [Penal Code](https://new.kenyalaw.org/akn/ke/act/1948/81) in the following terms :***a.“be in possession of” or “have in possession’’ includes not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person;b.if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed taken to be in the custody and possession of each and all of them”.*** 1. Espousing the above provision, the court in the case of ***Mula v Republic [2024] KEHC 14708 (KLR)*** held, *“From the above definition, it follows that possession may be actual or constructive. Actual possession denotes physical custody or control of an item or object. In that case, the person in possession has immediate contact and control over the item.”* In my considered view, the prosecution does not have to prove that the prohibited items were found on the accused’s body; it is enough if the evidence shows custody, control, or a sufficient nexus between the accused and the items. 1. Here, the police officers consistently testified that the exhibits were recovered from inside the shop where the accused persons were present, and the inventory was said to have been signed by both accused. 2. The prosecution evidence on recovery was not shaken in cross-examination. The consistency between PW1, PW2, and PW3 on the time, place, and nature of the recovered items supports the conclusion that the exhibits were found at premises occupied by the accused persons. The 2nd accused’s own evidence confirms his presence at the shop when the police arrived, which places him at the scene of recovery. 3. PW3 testified that he forwarded the exhibits to the Government Chemist under exhibit memo, and PW4 confirmed receipt, analysis, and preparation of reports. The exhibits were specifically identified, and the analyst linked them to the samples received. This was a proper chain of custody, and the court is satisfied that the exhibits, mainly the 81 rolls of cannabis sativa, analysed, were the same ones recovered. 4. However, I have taken issue with the alcoholic drinks exhibit produced as Pex no. 4 as produced by PW3. The same was a 500ml water bottle, as confirmed by PW4, the Government Analyst. While the same was proven to contain an alcoholic content of 17.74% alcohol by volume, there was no explanation as to how a bottle of 500ml would contain 2 litres of changaa, as stated, recovered by the prosecution witnesses and escorted to the Government Analyst. This creates doubt as to whether the exhibit that was escorted to the Government Analyst was the actual one produced in court inside a 500ml water bottle. On this, the chain of custody was broken and hence compromised the evidentiary value. 5. I have considered the defence by the 2nd accused. His version was that he, the 2nd accused, was an innocent bystander or customer caught up in a confrontation with police. His testimony is corroborated by DW2, who confirmed being with the 1st accused when he saw the police arrive at the 1st accused’s shop, and the 2nd accused intervened and was bundled up with the 1st accused inside the police vehicle. This evidence was not shaken by the prosecution during cross-examination. It remained solid, creating reasonable doubt as to the prosecution’s case that the 2nd accused was culpable in the circumstances. 6. The burden of proof in such a case does not shift to the accused person. It remains the solemn duty and responsibility of the prosecution to prove its case beyond reasonable doubt. Where there is doubt as to the evidence of the prosecution, then the same must be construed in favour of the accused. 7. From the above, it is evident that all the witnesses were police officers. The 2nd accused had an issue with their boss, the OCPD, whom they all confirmed to have been present during the arrest and who did not testify in this case. The 1st accused’s evidence that he was bundled up in this case for calling out the OCPD for assaulting the 1st accused at the shop is uncontroverted. In any event, it is obvious in normal circumstances that no junior police officer would ordinarily wrongly implicate his superior. 8. The prosecution’s evidence against the 2nd accused is further poked holes into during the re-examination of PW2, who clarified that the 2nd accused was found at the door of the shop. This corroborates his evidence that indeed, he was a customer and not the shop owner or attendant. I find reasonable doubt as to his culpability apparent in the circumstances. 9. The 1st accused, on the other hand, elected to remain silent. While silence cannot be used to fill any evidential gap, it leaves the prosecution case unrebutted where it is already strong, particularly against the 2nd accused, who was named as the shop attendant by both the prosecution witnesses and the 1st accused and his witness. This court is satisfied that the burden was discharged beyond a reasonable doubt in the first count of possession of bhang against the 1st accused. *Disposition* 1. I find the 1st accused is Guilty of Count 1, and I hereby proceed to convict her of the same pursuant to section 215 of the Criminal Procedure Code. On Count 2, the same fails in evidentiary value, and the 1st accused is acquitted of the same pursuant to section 215 of the Criminal Procedure Code. 2. The 2nd accused is found Not Guilty of both counts and is hereby acquitted of the same pursuant to section 215 of the Criminal Procedure Code. Dated, signed and delivered in Kiswahili, the language each of the accused states to fully understand, today, 10th August 2026, in the presence of both accused persons, Mr Githinji, the Prosecution Counsel and Mr Masiga, the Court Assistant. **Hon. Anne Njeru** **SRM**