https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/700

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E084 OF 2026** **REPUBLIC……………………………………………………………………………………..DPP** **VERSUS** **ALI HASSAN…………………...ACCUSED** **JUDGMENT** 1. Ali Hassan (“the Accused Person”) was arraigned on 16th January 2026, to plead to a charge of being in possession of bhang contrary to section 3 (1) as read with section 3 (2) (A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022 the particulars being: *On 15th day of January 2026, at around 0700hrs, at Oldrex area in Bungoma South Sub-County within Bungoma was found in possesion of 2,800 grams of canabis sativa with a street value of Kshs. 8,400/= which was not medically prepared* 1. The Accused Person denied the charge facing him. Consequently, this matter was set down for hearing for the prosecution to prove their case against the Accused Person beyond reasonable doubt. 2. The evidence adduced before this court by the prosecution and the defence is summarized below. **EVIDENCE** **Prosecution’s Case** 1. **PW1 No. 228826 PC Samuel Ooro** recalled that on 15th January 2026 at around 0700hrs, while in the company of PW2 and PW3 on routine patrol in Oldrex area, they met the Accused Person who went to hide in a canteen on seeing them. He added that the Accused Person was carrying a sack at that time. 2. They followed the Accused Person to the canteen, where they found him with the sack containing twenty brooms of dried leaves suspected to be bhang. 3. He stated in cross-examination that he was the one who searched the sack the Accused Person was carrying that day. He added that there were people at the place where the Accused Person was arrested who could confirm that the Accused Person was arrested while in possession of the bhang. 4. **PW2 No. 124748 PC Dickens Ng’etich** largely regurgitated PW1’s testimony. He added that they arrested the Accused Person and led him to the police station, where they prepared an inventory which the Accused Person signed. 5. **PW3 No. 88279 PC Joseph Lusiola** investigated this case. He stated the circumstances under which the Accused Person was arrested as narrated by PW1 and PW2. 6. He also stated the Accused Person was led to the police station after his arrest, where he signed an inventory. He recorded witness statements and forwarded the exhibits to the government chemist for analysis. He added that the government analyst report confirmed that the dried leaves the Accused Person had been arrested with were bhang. 7. He produced the twenty brooms of bhang, a green sack, a certificate of weighing dated 15th January 2025 (sic), a certificate of sampling dated 15th January 2025 (sic), an exhibit memo form dated 15th January 2026, and a government analyst report dated 16th January 2026 as exhibits. 8. He reiterated in cross-examination that the Accused Person was found with the bhang outside the police station in Oldrex. He admitted that he did not record a video during the Accused Person’s arrest to confirm that the Accused Person was arrested with the bhang, given that there was no need to do so. 9. He also admitted that the police station where the Accused Person was led after his arrest had CCTV coverage in strategic places. 10. He testified that he could not produce the CCTV footage showing the Accused Person’s arrival at the police station while in possession of the bhang, given that the said CCTV only stored data for one month due to its limited capacity. He produced a letter dated 13th April 2026 from the OCS Bungoma in support of his assertion that the CCTV footage in question could not be retrieved. **The Accused Person’s Case** 1. Upon the close of the prosecution’s case, this court placed the Accused Person on his defence. The Accused Person gave sworn testimony. 2. The Accused Person testified that police officers arrested him on the date of the incident at around 0600hrs as he walked to Bungoma town to look for casual work. He added that police officers told him: *“Tunatafuta mtu kama wewe…”* then led him to Bungoma Police Station’s anti-crime office. 3. He further stated that while at the police station, one police officer said: *“Huyu vile anakaa tumwekelee kesi ya bangi…”* He was then pushed into another office within the police station, where a sack of bhang was retrieved. He refused to be photographed with the sack of bhang. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the charge facing the Accused Person, the evidence adduced by the prosecution witnesses, and the Accused Person’s defence. 2. It is this court’s considered view that the only issue for determination is whether the prosecution has proved its case against the Accused Persons beyond reasonable doubt. 3. The offence facing the Accused Person is set out under section 3 (1) as read with section 3 (2)(a) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022, as follows:- *3. Penalty for possession of narcotic drugs, etc.* *(1) Subject to subsection (3), any person who has in his possession any narcotic drug or psychotropic substance shall be guilty of an offence.* *(2) A 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 to a term of not more than five years or to a fine of not more than one hundred thousand shillings;* 1. In **Kimani v Republic (Criminal Appeal E007 of 2021) [2022] KEHC 16205 (KLR),** the court stated that there are only two ingredients which the prosecution is required to prove so as to sustain a conviction, that is, possession and the fact that the substance possessed is listed under the Act. 2. Guided by the authorities above, it follows that the prosecution was obligated to prove beyond reasonable doubt that the Accused Person was found in possession of bhang for his own consumption. 3. The evidence placed before this court by the prosecution proved beyond reasonable doubt that the substance reportedly found in the Accused Person’s possession was bhang, and that the same was not meant for medical purposes. 4. The hotly contested issue is whether the Accused Person was found in possession of the bhang. 5. **Section 4** of the Penal Code defines possession as; (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. **In Stephen’s digest of the criminal law** possession is defined as ***“A moveable thing said to be in the possession of a person when he is situated with respect to it, that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances as such that he may be presumed to intend to do so in the case of need”.*** 2. Further in **Hussein V R (1980) KLR 139** the court of Appeal stated that, ***“in this definition on possession. It does not mean that any legal title had to be proved, nor that access to the complete exclusion of all other persons to be shown, but that a possession must have such access to and physical control over the thing that he is in a possession to deal with it as an owner could to the exclusion of strangers”.*** 1. The authorities above are in agreement that possession can be actual or constructive. This court will now proceed to determine whether the Accused Person was in actual or constructive possession of the bhang herein. 2. The prosecution witnesses maintained throughout the trial that the Accused Person was found in possession of the bhang in a canteen in Oldrex area. The Accused Person, on his part, maintained that the bhang was retrieved from the police station and handed over to him after his arrest. 3. It is against this backdrop that the Accused Person demanded CCTV footage from Bungoma Police Station to prove that he walked into the police station while carrying a sack of bhang after his arrest. The Accused Person also raised concerns about why no civilian witness had been called by the prosecution to corroborate the police officer’s testimony on the circumstances under which he was arrested. 4. PW3 testified that the CCTV footage demanded by the Accused Person could not be retrieved since the data in question had been lost upon the lapse of one month after the Accused Person’s arrest due to the CCTV’s alleged limited storage capacity. 5. This court takes the view that, given the Accused Person’s early denial of being in possession of the bhang at the time of his arrest, it was incumbent upon the prosecution to preserve any evidence available, including the CCTV footage, which they acknowledged was available during the Accused Person’s arrest, to prove their case to the required standards. 6. It also baffles this court, and it is inconceivable that a police station can have limited storage capacity for CCTV installed in a police station meant to collect and preserve evidence within a security installation like a police station. In any event, no expert evidence was placed before this court on the said CCTV’s storage capacity or the CCTV footage’s unavailability. 7. Further, this court notes that the prosecution did not give any explanation why they never called the person who owned the canteen or was in occupation of the canteen where the Accused Person was reportedly arrested with the bhang. There was also no explanation why the prosecution never called any other civilian witness present during the Accused Person’s arrest to corroborate the police officers’ testimony on the circumstances under which the Accused Person was reportedly arrested while in possession of the bhang. 8. The failure by the prosecution to produce the CCTV footage demanded by the Accused Person and the prosecution’s failure to call civilian witnesses to testify before this court regarding the circumstances under which the Accused Person was arrested inclines this court to question whether this is a case where the blue code of silence was being employed to nail the Accused Person. 9. The Court of Appeal in **Titus Ngamau Musila Katitu v Republic [2020] eKLR** had an occasion to explain the meaning of the blue code of silence as follows: *The “blue code of silence” is a common phenomenon, spanning across different countries and police cultures in America, Europe, Asia and even Africa. It is the unwritten rule according to which police officers never provide incriminating information about their colleagues; to close ranks in silence and to cover up knowledge of a fellow officer’s wrongdoing with a collective blanket of self-preservation, a feeling of*esprit de corps *among officers who by and large depend on each other for their very risky lives as they confront the violent and hostile world of policing and crime. This background is important in our consideration of this appeal because the police in Kenya, as we shall demonstrate in this case as in others before it, has, in certain circumstances engaged in the practice of covering up for each other…(Emphasis added)* 1. It is this court’s considered view that the blue code of silence applies mutatis mutandis to this case since none of the police officers who testified before this court could admit that the Accused Person had wrongly been arrested and charged by the police if that was the case. 2. This court also notes that no inventory signed by the Accused Person was placed before this court by the prosecution to show that the Accused Person admitted being in possession of the bhang herein at the time of his arrest. 3. The failure by the prosecution to place before this court an inventory signed by the Accused Person, the CCTV footage in question, and the failure to call civilian witnesses who witnessed the Accused Person’s arrest, when considered together with the blue code of silence, casts reasonable doubts on whether the Accused Person was in possession of the bhang during his arrest. 4. The inevitable conclusion to be drawn is that had the CCTV footage in question been produced or the civilian witnesses who witnessed the Accused Person’s arrest been called to testify, that evidence would have been exculpatory and adverse to the prosecution‘s case. 5. The foregoing casts reasonable doubt on whether the Accused Person was found in possession of the bhang herein. The said doubt must be resolved in the Accused Person’s favour. **DETERMINATION** 1. The upshot of the foregoing is that the Accused Person is acquitted under section 215 of the Criminal Procedure Code of the offence of being in possession of bhang contrary to section 3 (1) as read with section 3 (2) (A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022. 2. The Accused Person is set at liberty unless otherwise lawfully held 3. Judgment accordingly. **Judgment read, signed, and delivered in open Court at Bungoma this 06th day of May 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Accused Person Mr. Maroro for ODPP C/A: Mr. Rioba