https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/534

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E009 OF 2026** **REPUBLIC……………………………………………………………..………..…..PROSECUTOR** VERSUS **KELVIN BARASA………………….…………………………….………………….1ST ACCUSED** **PATRICK EMOMER……………………………………………………………….2ND ACCUSED** **RULING** **Introduction and Evidence** 1. The accused persons took plea on 5th January 2026 on the charge of Being in Possession of Narcotic drugs contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act of 2022. 2. The particulars are that the accused persons on the 31st day of December 2025 at Sokomoko area, Komiriai sub-location in Teso North Sub-County within Busia County jointly were found in possession of narcotic drugs namely bhang to wit three kilograms brooms and eight rolls with street value of Kshs. 1,000/= which was not in its medical preparation form. 3. The accused persons initially pleaded guilty to the charges. However, on 3rd February 2026, they asked the court that charges be read afresh. They pleaded not guilty and were admitted to Cash Bail of Kshs. 5,000/= each and the matter was set down for hearing. The prosecution called a total of four witnesses. 4. PW1 was one Saline Okware an Assistant Chief who testified that that on 31st December 2025 she received a tip off from members of the public that some boys were “doing work which was not known.” That she was pointed to the house where she went with approximately eight people including members of community policing. On getting there, there was loud music and she smelled something which she suspected to be drugs. They saw a basin with a broom and others looked like cigarettes. She found three people and called for reinforcement from Malaba Police Station and the accused persons were arrested. 5. On cross-examination by the first accused person she testified that she had received numerous complains about him. That there were three to four people in the room. That there was an allegation of theft of clothes and the accused persons were photographed with the brooms. 6. On cross-examination by the second accused person she testified that only three people were arrested and taken to the police station. That this was a case of drugs not one of theft of clothes which theft had earlier been recorded at her office. That one Steve did not bring the brooms to the house in what she referred to as a Dubai Bag. 7. In re-examination she testified that the brooms and rolls of bhang were not planted as they were found in the house of the accused persons. 8. PW2 was one Peter Odhiambo Ochieng a member of community policing who testified that on 31st December 2025 he accompanied the Assistant Chief to a house after receipt of information that the occupants were involved in activities which were not known. On arrival at the Plot in Sokomoko they heard loud music and entered the house where they saw something they suspected to be bhang. That four people were arrested but one was released for being a student. 9. On cross-examination by the first accused person he testified that he heard loud music and smelled something. That four suspects were arrested and exhibits recovered from the house. That he was not aware of any issue of stealing of clothes. That he knew one Steve who was a member of community policing. That the accused persons were smoking but he was not certain and he also was also aware having heard the issue of money being taken from the accused person. 10. On cross-examination he testified that one Steve behaved liked a police officer and he asked him to stop. That the bhang was found in the house and the said Steve did not plant it. 11. There was no re-examination for this witness. 12. PW3 was one CPL Elizabeth Madara the investigating officer who testified that on 31st December 2025 at 2130hours while on duty she was informed that suspects had been arrested. She went with her colleague to the scene and found the Assistant Chief and members of community policing had arrested the accused persons together with one Faustine Okumu. The Assistant Chief showed her a basin which contained the bhang and she took the exhibits to the police station. She took the suspects into custody and recorded statements of accused persons and witnesses. One Faustine Okumu informed her that he was not aware of the bhang and he was a visitor. She informed the OCS that the said Faustine was not involved and that he would become a prosecution witness. The other two accused persons were processed and arraigned in court. She prepared an exhibit memo and the substance was analyzed by a government chemist and was found to be bhang. She produced the government chemist report as an exhibit alongside the basin and the bhang. 13. On cross-examination by the first accused person she testified that on arrival at the scene she saw members of the public as well as members of community policing. That three people were arrested and not five. That the Assistant Chief told her that the bhang was recovered inside their house. That she saw a bundle of clothes at the scene but she did not hear any allegations of stealing clothes. 14. On cross-examination by the second accused person she testified that the accused persons were not smoking and she could not smell the bhang. That according to the Assistant Chief, three people were arrested and the bhang was in the house. That she did not take any photograph and she did not know one Steve. 15. In re-examination she testified that she could not know everyone at the scene and that photographs are not necessary in every crime scene. 16. PW4 was one Faustine Okumu who testified that on the material date he was looking for his cousin Patrick and he followed him to Kevin’s house. That on entering the house one member of community policing attacked them. That he had a white gunny bag and took out its contents and emptied them into a basin. He then started photographing them. 17. On cross-examination he testified that he found four people at the home. That on arrival he heard that there was an issue of stolen clothes and one Steve was searching for a pistol. 18. On cross-examination by the second accused person he testified that he did not find them with the bhang. That a total of five people were arrested. 19. There was no re-examination for this witness. This marked close of the prosecution case and the court reserved the matter for ruling on case to answer on 20th August 2026. **Analysis and Determination** 1. The issue for determination is ***whether, on the evidence placed before the Court, the prosecution has established a prima facie case against the accused persons to warrant them being placed on their defense.*** The charge is one of possession of cannabis. The prosecution was therefore required, at this stage, to place before the Court evidence capable of establishing the essential elements of the offence, including the fact of possession and the requisite nexus between the accused persons and the cannabis allegedly recovered. 2. PW1, the Assistant Chief, testified that she received information that some boys were engaged in activities which were not known. She proceeded to the scene, where she allegedly recovered cannabis in form of brooms, cigarettes and a rizzler. PW2 initially gave evidence suggesting that the persons at the scene were smoking cannabis, but during cross-examination recanted that account and stated that he did not see them smoking. His evidence was instead that he merely smelt cannabis from the entrance of the building. PW3 similarly confirmed that, upon arrival, she did not witness anyone smoking. This distinction is material. The mere presence of a smell associated with cannabis, if at all, does not establish that any particular accused person possessed the substance. 3. There is further inconsistency concerning the number of persons who were at the scene. PW1 referred to three or four persons, whereas PW2 showed the court a photograph showing five persons who had been made to sit down at the point of initial arrest. PW3 stated that three persons were arrested and that one was released because she allegedly determined that he was not involved in the drugs and was merely a friend to the accused persons and a visitor in that house. No satisfactory explanation was given as to how this determination was made. This is particularly significant because the accused persons themselves were friends and the premises were said to belong to the first accused person. If friendship was a basis upon which one person could be excluded from the alleged criminal activity, the prosecution was required to demonstrate the objective basis upon which the accused persons were singled out and associated with the cannabis. 4. The evidence further raises serious concerns regarding the manner in which the alleged recovery was undertaken. During cross-examination, a disturbing account emerged concerning the conduct of the persons who conducted the search, particularly one Steve, who was not called as a witness. Evidence was given of forceful ransacking and bullying, including allegations that Steve searched the speakers, took money and, most significantly, planted the cannabis. PW4, who was called as a State witness, substantially corroborated this account and thereby introduced a version of events that fundamentally undermined the prosecution case concerning the recovery. 5. The failure to call Steve assumes significance in these circumstances. He was not a peripheral character in the narrative emerging from the evidence. His alleged conduct was directly connected to the circumstances in which the cannabis was purportedly recovered. Where the prosecution case is founded substantially upon a disputed recovery, the unexplained failure to call a material witness who could shed light on that recovery leaves the Court with a serious evidentiary gap. 6. The Court is alive to the fact that inconsistencies in evidence do not, in every case, render a prosecution case untenable. Minor discrepancies may arise in the course of human recollection. The inconsistencies in the present case, however, are not minor. They go to the very core of the prosecution case: who was at the scene, who was arrested, who was smoking, who possessed the cannabis, how the accused persons were distinguished from the other persons present, and how the cannabis came to be recovered. 7. More importantly, the prosecution has not sufficiently connected either accused person to the alleged cannabis. The evidence does not demonstrate actual possession. Neither does it sufficiently establish constructive possession by demonstrating knowledge, control or dominion over the substance. The fact that the premises allegedly belonged to the first accused, or that the accused persons were friends, cannot by itself constitute proof of possession. Suspicion, however strong, cannot take the place of evidence. 8. The Court also takes judicial notice of the fact that a person may come into contact with law enforcement or be present in circumstances that raise suspicion. Such circumstances may justify inquiry or even investigation. They do not, however, dispense with the prosecution's obligation to establish the ingredients of the offence through admissible and cogent evidence. The criminal process cannot proceed on the basis that because the accused persons appeared suspicious, they must therefore have been in possession of the cannabis. 9. The evidence before the Court instead presents two competing narratives. The prosecution witnesses initially sought to place the accused persons in circumstances suggestive of drug use and possession. However, under cross-examination, significant aspects of that narrative unravelled. PW2 abandoned the assertion that the persons were smoking. PW3 did not witness any smoking. The evidence regarding the number of persons arrested became uncertain. One person was selectively released without a satisfactory explanation. Most significantly, PW4's evidence supported the defence account concerning the manner in which the alleged recovery was made, including the allegation of planting of the cannabis. 10. At this stage, the Court is not called upon to determine whether the accused persons are innocent. The question is whether the prosecution has placed before the Court evidence upon which a reasonable tribunal, properly directing itself on the law and the evidence, could convict if no explanation were offered by the accused persons. 11. On the totality of the evidence, the Court is unable to answer that question in the affirmative. The evidentiary deficiencies are not matters that can properly be left for the accused persons to explain. To call upon them to enter a defence in these circumstances would risk shifting the burden of proof to them and requiring them to disprove suspicion rather than requiring the prosecution to establish the offence. 12. The Court therefore finds that the prosecution has not established a prima facie case against the accused persons. The accused persons are acquitted under Section 210 of the Criminal Procedure Code. 13. Cash Bail shall be refunded to the depositors upon proper identification. The cannabis and rizzler produced as exhibits shall be retained pending expiry of the fourteen-day period for lodging an appeal. In the absence of an appeal, the exhibits aforementioned shall be destroyed. **RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 20TH DAY OF AUGUST 2026.** In the Presence of Kelvin Barasa- 1st Accused Person Patrick Emomer- 2nd Accused Person Mr. Rotich- Prosecution Counsel Court Assistant: Brenda Ochieng’ **A.Z. OGANGE** **RESIDENT MAGISTRATE** 20.08.2026