https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/325

Republic v Maina (Criminal Case E1332 of 2025) [2026] KEMC 325 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEMC 325 (KLR) Republic of Kenya In the Nyeri Law Courts Criminal Case E1332 of 2025 MM Gitumbi, SRM July 20, 2026 Between Republic Prosecution and Alex Mwangi Maina Accused Judgment 1.The accused is charged with the offence of possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) (b) of the Narcotic Drugs and Psychotropic Substances Control Act. The particulars are that on the 7th day of December 2025 at around 0230hrs, at Mathari area in Nyeri central sub-county within Nyeri County, the accused was found in possession of narcotic drugs namely heroin to wit thirty sachets of estimated street value of Kshs. 6,000/= which was not in medical preparation form contrary to the law. 2.The accused pleaded not guilty and the matter was set down for hearing. Prosecution Case 3.PW1, PC Collins Kwarula, testified that on the night of 7th December 2025, he and his colleagues were on patrol. They received information from an informer that two men were selling narcotic drugs. The informer directed them to the house of the two men. They went to the said house and upon knocking, they found two men. They introduced themselves and did a search of the house. PW1 told the court that he also did a search on the accused who was among the two men. He removed a brown khaki envelope from the accused’s jacket pocket. Inside the khaki envelope, he found a transparent paper which had three boosters with ten sachets each. He suspected that the sachets had heroin. On the other person, they found one booster that had ten sachets of suspected heroin. The two men were arrested. PW1 identified the accused as among the persons he arrested on the said date. Upon cross-examination, PW1 admitted that the informer was not a witness in this matter. He also stated that the area Chief and members of nyumba kumi were not involved or notified when they went to the house. 4.PW2, a government chemist, told the court that on 30th December 2025, he received exhibits from a police officer for examination. He was required to examine the exhibits to ascertain the exhibits were narcotic drugs and the type of narcotic drugs. He described the exhibits as 30 sachets of a powdery substance which weighed 5.87grams. Upon examination, he established that the exhibits were a narcotic drug, specifically, heroin. PW2 produced his report as evidence. Upon cross-examination, PW2 stated that it was not mandatory for the accused to be present during examination of the exhibits. 5.PW3, a police officer, gave similar testimony to PW1. He confirmed that he was on patrol with PW1 and other officers when they received information that two young men were selling heroin at Majengo area. He stated that they went to the house where the two resided. They knocked the door and the accused opened the door. He stated that the accused goes by the alias Paro. There was another person in the house by the name Gibson alias Tallman. They did a search of the house and recovered 30 sachets on the accused and 10 sachets on Gibson. They suspected the sachets contained heroine. They proceeded to arrest both men. Upon cross-examination, PW3 clarified that the sachets were found on the accused’s jacket pocket. PW3 admitted that they did not take any photographs. 6.PW4, the Investigating Officer, told the court that on material day he was on patrol with PW1 and PW3. He reiterated the testimony of PW1 and PW3. He went on to produce the exhibit memo, inventory and 30 sachets of heroin. Upon cross-examination, PW4 stated that the accused claimed that the house belonged to his father. He admitted that the area Chief and members of nyumba kumi were not informed what was happening. He stated that Gibson did not state that the drugs belonged to him. He confirmed that he did not take any photographs at the scene. 7.The Prosecution closed its case at this point. I found that the accused had a case to answer and placed him on his defence. In his defence, the accused elected to give a sworn statement. Defence 8.In his defence, the accused stated that on 7th December 2025 which was on a Sunday, he had gone to visit his mother. While at his mother’s house, he was sent to his aunt who lives in Mathari. It got late while he was at his aunt’s place and his aunt advised that he sleeps at his cousin’s house. At around mid-night, police officers came to his cousin’s house. He identified his cousin as Gibson Gichuki. They did a search of his house and recovered some items. The accused claimed that the items recovered belonged to his cousin. The police proceeded to arrest both of them despite the accused informing them that he was just a guest at the house. Upon cross-examination, the accused admitted that he was the one who opened the door. He claimed that he was not wearing a jacket. He stated that he was not aware that the items that were recovered were drugs. He told the court that the items were recovered from where Gibson hangs his clothes. The Determination 9.The accused is charged under the provisions of Section 3(1) as read with Section 3(2) (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act which read 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—(b)in respect of a narcotic drug or psychotropic substance, other than cannabis, where a person is in possession of less than one gram, to a fine of not less than five million shillings, or to imprisonment to a term of not less than five years, or to both such fine and imprisonment; 10.The ingredients for the offence of possession of a narcotic drug were discussed in the case of Maina v Republic (Criminal Appeal E050 of 2022) [2023] KEHC 280 (KLR) as:“ 60.In respect of an offence involving possession of forbidden psychotropic or narcotic substance, it is for the prosecution to prove beyond reasonable doubt the following: -i.That the substance in question was prohibited narcotic or psychotropic substance under the Act.ii.That the said was in possession of or under the power or control of somebody.iii.That the person was/is the appellant.” 11.The Prosecution alleged that on 7th December 2025, the accused was found in possession of 30 sachets of a narcotic drug suspected to be heroin valued at Kshs. 6,000/=. In support of their case, the State called the evidence of PW1, PW3 and PW4. They all told the court that they were on patrol on the night of 7th December 2025 within Majengo area. They claimed that they received information from an informer that two men were selling narcotic drugs. The informer directed them to the house where the two men were. They knocked on the door and the accused opened. They introduced themselves and proceeded to search the house. They claimed that another man by the name Gibson was in the house. They all told the court that they found three boosters in a transparent paper in the accused’s jacket pocket. Each booster had ten sachets of what they suspected to be heroine. Further, they found the said Gibson with ten sachets of suspected heroin. They arrested both men. 12.On the first ingredient of the substance being prohibited under the aforementioned Act, PW2 told the court that he received exhibits being 30 sachets of a powdery substance. He examined the substance which weighed 5.87 grams and confirmed that it was indeed heroin. He produced his report which bore his findings. From the evidence of PW2, it is evident that the 30 sachets contained heroin which is a prohibited substance listed as such under the First Schedule to the Narcotic Drugs and Psychotropic Substances (Control) Act. 13.The second ingredient is the substance being in the possession of the accused. Under the Penal Code, the term possession is defined as follows:"possession"—(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 anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of 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 and taken to be in the custody and possession of each and all of them;(emphasis added) 14.PW1, PW3 and PW4 stated that the 30 sachets of heroin were found in the accused’s jacket pocket in three boosters each containing ten sachets. PW1, PW3 and PW4 were all present during the search. They all saw the drugs being recovered from the accused’s person. 15.In his defence, the accused claimed that on the material day, his mother sent him to his aunt. He told the court that he went to his aunt’s but it got late while he was there. His aunt proposed that he sleeps at his cousin’s house. He identified his cousin as Gibson Gichuki. He claimed that while at this cousin’s house, at around mid-night, the police came and did a search. He stated that they recovered some items. He claimed that the items belonged to his cousin. He denied that any items were found on him. Further, he denied that he was wearing a jacket. In my view, the evidence of the accused was not corroborated. He claimed that he was at his cousin’s house simply as a guest and the items that were recovered therein belonged to his cousin and not him. However, the accused failed to call any witness such as his aunt to confirm that he was simply a guest at the home. I am not persuaded that the accused was telling the truth. 16.The evidence of PW1, PW3 and PW4 showed that the 30 sachets were found on the accused’s person, specifically, in his jacket pocket. This means that the accused was in possession of the 30 sachets. The accused claimed that no photographs were taken of him with the drugs and that the area Chief and members of nyumba kumi were not involved. In my view, it is not mandatory that photographs are taken at the scene or that the area Chief and members of the nyumba kumi are informed of the incident. It is important that the prosecution shows and corroborates its evidence that indeed the accused was in possession of the heroin. In this case, the State was able to prove through the evidence of PW1, PW3 and PW4 that indeed the accused was in possession of 30 sachets of heroin. 17.In conclusion I find that the Prosecution proved the offence of possession of a narcotic drug being 30 sachets of heroin. The accused is hereby convicted of the offence of possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act under Section 215 of the Criminal Procedure Code. 14 days Right of Appeal. DATED, SIGNED, AND DELIVERED IN NYERI ON THIS 20TH DAY OF JULY 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:………………………………Prosecution Counsel………………………………Accused………………………………Court Assistant