https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/273

Republic v Issa (Criminal Case E012 of 2026) [2026] KEMC 273 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEMC 273 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E012 of 2026 FM Mulama, RM July 8, 2026 Between Republic Prosecutor and Abdulrahman Issa Accused Judgment A. INTRODUCTION. 1.Abdulrahman Issa is charged with trafficking in narcotics drugs contrary to section 4(a)(ii) of the narcotic drugs and psychotropic substances (control) Act No. 4 of 1994. The particulars in support thereof were that on the 12/3/2026 at Tchundwa village in Lamu East the accused trafficked cannabis sativa weighing 250grams and 10 tablets of diazepam with a market value of Kshs.7,500 and kshs.200/= respectively by storing both of them in contravention with the said Act. 2.The accused denied the charges and 3 witnesses took to the dock to prove the guilt of the accused person. 3.The accused was subsequently found to have a case to answer and was placed on his defence and he gave sworn evidence and never called any witnesses. 4.I have since considered the testimonies by both parties and the exhibits produced by the prosecution. The Prosecution’s case. 5.It is the prosecution’s case that on 12/3/2026 police officers while on patrol at 2030hours in Tchundwa village came a cross a house and therein found 3 men one of whom had an orange bag on his back and was standing against the wall but there was a panga next to him. They went and arrested him through Pw 1. A search was conducted on him and approximately 250grams of substance suspected to be cannabis was recovered. Also recovered were 10 tablets of diazepam,1 roll of partially smoked bhang, matchbox with match sticks, razor blade, metallic spoon, transparent side plate and a broken tile. 6.The boy who had the orange bag with all the listed items was the accused who was arrested and now before court to answer to the charges. The testimony of Pw 1 was corroborated by pw2 and 3 all of whom confirmed that the accused was the one carrying the orange bag that had all the exhibits produced. The defence case 7.The accused in his sworn testimony stated that on the material date he was with Fawaz and Yusuf when the police came and arrested all of them and conducted a search on them but never recovered anything but they took some things from his father’s house and they were escorted to the police station and processed. B. ISSUE FOR DETERMINATION. 8.Has the prosecution proved the charges against the accused person beyond reasonable doubt? In order to answer this question in the affirmative the following issues are to be determined in the affirmative.a)Whether the accused person trafficked substances suspected to be bhang and cozepam.b)Whether the accused person was in possession of the substances suspected to be bhang and cozepamc)That the substance found in possession of the accused is a narcotic drug. C. ANALYSIS AND DETERMINATION. 9.Issues (a) and (b) above will be determined together for the simple reason that before one traffics he or she should in possession of the thing he or she intends to traffic but before that determination let us see how the Act has defined trafficking. 10.Section 2 of the Act defines trafficking in the following terms;“trafficking” means the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof, but does not include—(a)the importation or exportation of any narcotic drug or psychotropic substance or the making of any offer in respect thereof by or on behalf of any person who holds a licence therefore under this Act in accordance with the licence;(b)the manufacturing, buying, sale, giving, supplying, administering, conveying, delivery or distribution of any narcotic drug or psychotropic substance or the making of any offer in respect thereof, by or on behalf of any person who has a licence therefore under this Act in accordance with the licence; or(c)the selling or supplying or administering for medicinal purposes, and in accordance with the provisions of this Act, of any narcotic drug or psychotropic substance or the making of any offer in respect thereof, by a medical practitioner or veterinary surgeon or dentist or by any other person qualified to do so on the instructions of the medical practitioner or veterinary surgeon or dentist;(d)or the selling or supplying in accordance with the provisions of this Act, of any narcotic drugs or psychotropic substances by a registered pharmacist; 11.The state bears the responsibility of proving that the accused did any of the acts that constitutes trafficking as has been defined above. In this case the state opines that the accused trafficked the 2 drugs by storing them. 12.In support of this assertion it was the evidence of all the prosecution witnesses that while on patrol on the material date and time, they went to a house wherein they found 3 boys one of whom being the accused who had an orange bag that had several items which were produced as exhibits 2 to 8. These facts were not disputed by the accused save for the fact that upon search being conducted on all of them they were not found with anything. 13.The accused in defence stated that all of them were not found with anything while on the other hand all the prosecution witnesses say otherwise. The accused in defence in corroborating the evidence of the prosecution stated that he was with Fawaz and Yusuf. Since the overwhelming evidence prove that the accused was in possession of the items, it was incumbent upon the accused person to prove the contrary by calling the 2 to prove his assertion and the court would be in a position to give due weight to the evidence by both sides and decide which one has more weight and which clearly paints a picture of what really transpired on the material date and time. 14.This was not done and yet the accused never told the court that the 2 cannot be available to give testimony and if at all he was not in possession nothing would have been easier than calling them to confirm his assertion. The fact that he deliberately failed to call them infers that he was in possession of the items and he is afraid that the 2 will confirm as much. 15.It therefore goes without saying that the evidence on record by the prosecution and that is perfectly corroborated indicate that the accused was in possession of exhibits 1 to 8. 16.By keeping all the exhibits in the bag but specifically Pexh 2, 3 and 4 being bhang, diazepam and partly smoked bhang the accused by that alone stored substances suspected to be narcotic drugs and despite this overwhelming evidence as regards possession of all these items, the accused never attempted to explain why he was in possession and what he was doing with all those items. 17.In addition, that the said substances and in the quantities recovered, there was no indication by the accused that they were for his own consumption so that the offence of possession is established. Therefore, the only conclusion the court can arrive at looking at the testimonies and exhibits produced is that the accused was trafficking the said narcotics. Further, the addition things found together with the narcotics suggest to me that they are for packing and/or repackaging them into smaller portions for ease of sale. This explains why there was a razor blade, side plate and metallic spoon. 18.The sum total of the testimony is that the evidence on record prove that the accused was indeed in possession of the substances suspected to be narcotics drugs and that he had stored them in the orange bag (Pexh 1) and to this end the offence of trafficking narcotics by storing has been established and/or proved. 19.As to whether the substances suspected to be narcotics to wit Pexh 2 and 3 are narcotics, the said samples were submitted to the government analyst and vide a report dated 23rd March 2026 was prepared. 20.The analyst in the said report found that the said Pexh 2 and 3 were cannabis and diazepam respectively and which are narcotic drugs as per the Act. The accused did not challenge the said report. It is thus proved that the said substances suspected to be narcotics drugs were indeed narcotic drugs. 21.The totality of the evidence put on a weighing scale between the evidence by the prosecution and the defence, the one by the prosecution outweighs that of the defence. The defence contained mere denials especially on the issue of possession and it is consequently dismissed. D. CONCLUSION AND DISPOSITION. 22.The upshot of the foregoing is that the charge against the accused person has been substantiated and/or proved to the required standards and the accused person is thus guilty in that sole account and he is accordingly convicted in the said count under Section 215 of the CPC. 23.Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS (FAZA MOBILE COURT )THIS 8th DAY OF JULY 2026.F.M.MULAMARESIDENT MAGISTRATEIn the presence of:Court assistant: Dhidha Rhova Joseph.DPP: Idris Tomno.Abdulrahman Issa Arumi