Republic v Swaleh (Criminal Case E005 of 2026) [2026] KEMC 271 (KLR) (8 July 2026) (Judgment)

Republic v Swaleh (Criminal Case E005 of 2026) [2026] KEMC 271 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEMC 271 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E005 of 2026 FM Mulama, RM July 8, 2026 Between Republic Prosecutor and Swaleh Ahmed Swaleh Accused Judgment A. Introduction. 1.Swaleh is charged with the offence of trafficking in narcotics drugs contrary to section 4(a)(i) of the narcotic drugs and psychotropic substances (control) Act No. 4 of 1994. The particulars in support thereof were that on 4/2/2026 at around 0800hours in Kizingitini the accused trafficked 250grams of cannabis with a street value of Kshs.12,000/= by storing contrary to the Act. 2.2 witnesses testified on behalf of the state whereas the accused after being found to have a case to answer, gave sworn statement and closed its defence. 3.I have since considered the testimonies by both parties and the exhibits produced by the prosecution. The Prosecution’s Case. 4.It is the prosecution’s case that on 4/2/2026 went out on patrol with Chief Inspector Mwaka and PC Seveni(Pw 2) and on the way they received a tip off from a member of the public that the accused who is well known was packaging and selling bhang to his customers. They rushed to the scene and when the accused saw them he jumped out of the house and escaped. 5.They nonetheless went into the house and conducted a search and inside the sofaset they found transparent papers filled with dry plant substances they suspected to be bhang, smaller packages of the same dry plant substances, candles and razor blades. They collected all those items and returned to the station. Later on they laid an ambush and managed to arrest the accused person who was later processed and arraigned in court. it was the evidence by the state that they suspected the accused was trafficking in narcotics because of the discovery of the smaller packages. 6.The Investigating officer PC Morris Seveni corroborated the evidence of Pw1 save for the items recovered and proceeded to produce 4 exhibits while indicating that some exhibits were missing because they were at the station. The Defence Case 7.The accused in his sworn testimony stated that on the material date he had gone fishing and when he returned at around 1pm her sister informed him that the police had forcefully gained entrance and she was not sure what they were upto. He immediately called the OCS to find out what had happened and he was summoned to the police station and that is how he was arrested. 8.He denied the account of events as given by the police stating that if he had jumped from the house as they alleged, he would have injured himself which was not the case and that it would be unreasonable for him to escape arrest then surrender himself to the police. B. Issue for Determination. 9.The following are the issues for determination.a.Whether the accused person trafficked dry plant substances suspected to be bhang by storing.b.Whether the dry plant substance is bhang/cannabis. C. Analysis and Determination. 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; orc.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 dry plant substance they suspected to be bhang by storing them. 12.For starters the fact that the dry plant substances is cannabis or bhang is now not in dispute. The accused did not dispute that it is bhang and further and most importantly the report dated 19th March 2026 and produced as Pexh 4 confirms as much. So issue number (b) is answered in the affirmative. 13.I now move on to determine whether the accused trafficked cannabis/Bhang by storing. 14.It is the evidence of Pw 1 and 2 that while acting on a tipoff raided the house of the accused person and who on seeing them escaped by jumping off the house although it was not clear how he did that as Pw 2 stated that he jumped through the roof whereas Pw 1 indicated that he jumped out of the house. 15.Be that as it may they entered into the house and according to Pw 1 they recovered the following items; bhang in a big packet, bhang in smaller packets, candles and a razor blade. Pw 2 on the other hand stated that they recovered transparent sachets, 2 large sachets that had bhang and 1 small sachet that had bhang. 16.As it is evidently clear 2 witnesses who were at the scene at the same time giving different accounts of what was really recovered and/or seized. To make it worse no inventory for the seized items was prepared and/or produced in court. 17.Additionally, not all seized items were produced in evidence and when asked why that was the case by the prosecutor, the IO-Pw 2 casually answered that he had left them at the station and never sought to be stood down and be given an opportunity to avail them in court. This to me paints a picture of a deliberate move by the investigators to scuttle the course of justice as I did not understand why in the first place an inventory was not prepared and secondly not all the seized items were produced. One wonders what the said officer intends to do with them at the station. 18.It is therefore clear in my mind that there exists doubts in the prosecution’s case that I have pointed out in this judgment so far. One relates to how the accused escaped and secondly and most importantly what was exactly seized from the house. 19.It would have made a little more sense since it is alleged that the accused escaped, for the police to properly document the scene by having a record of the seized items and also take photographs of the scene and that would have explained in details where exactly the items were recovered from to avoid any possibility of the same being planted in the house of the accused. Without this evidence there is a clear doubt as to what exactly was seized. 20.There is no evidence to show for instance that the place they raided actually belongs to the accused person for criminal culpability to attach in the sense that it would be said without any shadow of death that he was storing cannabis. There is nothing in evidence linking the accused to the said house. 21.Storing being a major component consisting the offence in my view ownership of the said house was to be established. In the absence of proof of ownership, the aspect of storing is diminished and the only offence that is likely in the circumstances is that of possession. In properly investigated cases, the offence of possession of narcotic drugs would be the alternative charge but again that is not the case herein. 22.I have said enough to demonstrate that this case was poorly investigated with evidence pointing towards a deliberate attempt to scuttle the course of justice. 23.Since there are doubts in this matter that I have made reference to in this judgment, they are of necessity resolved in favour of the accused person and the inevitable conclusion I must arrive at in the circumstances is that the case has not been proved to the required criminal standard. D. Conclusion and Disposition. 24.The upshot of the foregoing is that the charge against the accused person has not been substantiated and/or proved to the required legal standards in criminal cases. The case by the prosecution is dismissed for that reason. 25.The accused person is thus not guilty in that sole account and he is accordingly acquitted in the said count under Section 215 of the CPC. 26.The accused is at liberty unless otherwise lawfully held. 27.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:Ccourt assistant: Dhidha Rhova Joseph.DPP: Idris Tomno.Swaleh Ahmed Swaleh