John v Republic (Criminal Appeal E029 of 2025) [2026] KEHC 5349 (KLR) (22 April 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MARSABIT CRIMINAL APPEAL NO. E029 OF 2025 ROSE AKINYI JOHN……………………………..……....…. APPELLANT VERSUS REPUBLIC ……………………………..….…….. ………....RESPONDENT (Being an appeal against the original Conviction and sentence by Hon W. K Cheruiyot, Principal Magistrate, delivered on 1 st July 2025 in Moyale MCCR NoE345 of 2024) JUDGEMENT A. INTRODUCTION 1. The Appellant, Rose Akinyi John was charged with the offence of Trafficking in Narcotics and Psychotropic substance contrary to section 4(A)(ii) of the Narcotic drugs and psychotropic substances (Control) Act. The particulars were that on the 23rd day of October 2024 in Moyale town within Moyale sub county, within Marsabit County, she was found in possession of a Narcotic drug MARSABIT HCCR APPEAL NO.E029 OF 2025 1 namely Cocaine to wit 287.73grams with a market value of Kshs.1,150,920/= in contravention of the said Act. 2. On count 2, the appellant, and her co accused Evelyne Odhiambo were charged with the offence of conspiracy to traffic in Narcotic drugs contrary to section 4(b)(4) as read together with section 4(b)(5) of the Narcotic drugs and psychotropic substance (control) Act. The particulars were that on the 23rd day of October 2024 in Moyale town within Moyale sub county, within Marsabit County, they jointly conspired to traffic in a narcotic drug namely Cocaine to wit 287.73grams with a market value of Kshs.1,150,920/= in contravention of the said Act B. FACTS AT TRIAL 3. PW1 Sergeant Stephen Ndereba, attached to DCI Moyale recalled that on 23.01.2024 at about 8.00am, they received information that there were two women who had entered Kenya from Ethiopia and were at Azora Hotel stage planning to board a public vehicle to Marsabit town. Acting on the said tipoff, he and his colleagues went and arrested the appellant and her colleague and took them to the police station, where they assigned Pc Fatuma (PW2) to search them. During the said search 25 pellets were recovered from the appellant, while nothing was recovered from the 2nd accused person. MARSABIT HCCR APPEAL NO.E029 OF 2025 2 He proceeded to prepare an inventory, which was signed by the appellant and placed the appellant under their custody pending further investigations. 4. He later summoned the government analyst from Marsabit, who weighed and tested the recovered substance and it was found to be 200 grams of Cocaine. Under cross examination, PW1 confirmed that they had arrested the accused based on classified intelligence received and that they had re-entered Kenya from Ethiopia through panya route, since her passport had not been stamped confirming re-entry into Kenya. 5. PW2, PC Fatuma Aliow Guyo, confirmed that she was stationed at Moyale police station and recalled that on 23.01.2024 she was summoned to the crime office and was tasked to physically frisk and searching two female suspects, whom were under arrest. She took the said suspected to a private room within the station and asked the appellant to remove her cloths. She first removed her Dera and bra after which she removed her black trouser and pink panty, that had a pad attached to it. She noticed that the accused had a second panty, which she asked her also to remove and upon further search the accused removed an item wrapped in a pair of socks within her vagina and therein she found 25 pellets. The search on the 2nd accused did not lead to any recovery. MARSABIT HCCR APPEAL NO.E029 OF 2025 3 6. PW3 George Kekilte, confirmed that he was a government analyst attached to Government chemist- Marsabit town, and had been gazette on 22.06.2021 vide gazette notice Vol 35226/2021, and held a Msc degree, in medical Biochemical from Kenyatta university. On 1.11.2024, he was invited to Moyale police station for weighing and sampling on substance suspected to be narcotics. He marked the samples as RJ1 to RJ25 and their weight was 287.73 grams. He thereafter he took a sample from each pallet and tested the same for narcotic, which revealed that the said substance was Cocaine. The weighing and sampling was done in the presence of both accused persons and several police officer, after which he issued a certificate of sampling. 7. Later on, 04.11.2024 the said samples marked RJ1 to RJ25 were forwarded to him by PW1, with a formal request that the same be tested to determine if they were narcotic and/or psychotropic substance. He analyzed the same using ultra violet/visible statoscope (UVA) method and confirmed that the said samples were found to be cocaine at 100% by weight in grams and in terms of purity. He prepared his report dated 08.11.2024, which he produced into evidence, together with the Exhibit memo form. 8. PW4 PC Ronald Onderi, evidence mirrored that of PW1, since he was part of the DCI team that arrested the MARSABIT HCCR APPEAL NO.E029 OF 2025 4 appellant and her co accused at the matatu stage near Azora hotel. Under cross examination he affirmed his evidence and confirmed that the appellant willingly signed the inventory admitting that the palates had been recovered from her. They had also recovered a mobile Techo phone, which was forwarded to cybercrime laboratory for examination. 9. PW5, CI Philip Langat attached to DCI anti-Narcotics department (Gazette 9805 in 20.09.2017) confirmed that he had 30 years’ experience and was in charge of the Anti- Narcotic unit in Nairobi. He confirmed that on 01.11.2024, PW1 called him and informed him of the narcotic recovery made and requested to know the value of the same. He proffered that one gram was used to prepare 10 sachets, and one sachet costed Ksh 400/=. The value of one gram of cocaine was therefore placed at Kshs 4000/=. Therefore 287.73grams would cost a sum of Ksh1,150,920/=. He prepared a valuation certificate dated 01.12.2024, which he produced before court. 10. PW6 PC Brian Ngolia of DCI Moyale Anti narcotic office also regurgitated the evidence of PW1 and PW4 as to how they arrested the appellant and the recoveries made. They prepared an inventory which was signed by the accused and other police officers and also served a seizure notice on her. They later called PW3, who came from Marsabit and weighed MARSABIT HCCR APPEAL NO.E029 OF 2025 5 and sampled the recovered narcotics in the presence of the appellant and her co accused. He also forwarded the phones recovered from both accused to the cybercrime laboratory for analysis to show that the two accused were in touch, but did not get a report, since the laboratory machine had broken down. He proceeded to produced all recovered items into evidence in support of their case. 11. The prosecution closed their case and upon considering the evidence presented, the trial court did establish that prosecution had established a prima facie case against the appellant and placed her on her defence, but acquitted the 2nd accused under section 210 of the Criminal procedure code. C. DEFENCE CASE 12. The appellant gave sworn evidence and stated that she was widowed and was blessed with three children. Through a Facebook dating site, she had got in touch with a Senegalese man and after chatting online for about four months, he suggested to her that they meet in Addis Ababa- Ethiopia, where he was based. She processed her passport and embarked on her journey to Addis Ababa, where she stayed with the said boyfriend for two weeks, after which he escorted her back to Moyale but did not cross over into Kenya. MARSABIT HCCR APPEAL NO.E029 OF 2025 6 13. She procedurally cleared with the customs office, and as she walked along the road meet PW6, who asked her questions relating to her travels and then demanded that they proceeded to the police station, where she was searched and no drugs/narcotics were found in her possession. She also stated that the 2nd accused person was not known to her and had nothing in common. She thus urged the court to acquit her. Under cross examination she emphasized that nothing was recovered from her during the physical search and maintained that she had been tricked to sign the inventory of the recovered items. 14. The trial court considered the evidence adduced by both prosecution and defense, and proceeded to convicted the Appellant of the offence of trafficking in narcotic drugs and psychotropic substance contrary to section 4(A)(iii) of the Narcotic and psychotropic substance control Act. Upon mitigation, the appellant was sentenced to pay a fine of Kenya shillings fifty (Kshs 50,000,000.00/=) million and in default to serve ten (10) years imprisonment. 15. Being wholly dissatisfied by the said judgment and sentence, the Appellant filed her petition of appeal and raised the following grounds of appeal; MARSABIT HCCR APPEAL NO.E029 OF 2025 7 a. The lower court never accorded a fair trial. b. The learned Trial Magistrate erred in matters of law and fact by failing to take into account the appellants defence. c. The learned trial magistrate erred in law and fact in holding that the prosecution had proved its case beyond reasonable doubt, when in fact it had not. d. That the learned trial Magistrate erred in law and fact in failing to consider the time spent in remand before meting her sentence. 16. The Appellant thus sought to have her conviction and sentence quashed and she be set free forthwith. D. THE APPEAL 17. This being the first appeal, this court is expected to re- evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see MARSABIT HCCR APPEAL NO.E029 OF 2025 8 their demeanour. This court relies on the finding of the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where they stated thus: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 18. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:- MARSABIT HCCR APPEAL NO.E029 OF 2025 9 “The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 19. I have considered the entire record of appeal, the trial bundle record, and the submissions on record filed by the parties. I find that the issues for determination are as follows; a. Whether the prosecution adequately proved their case beyond reasonable doubt that the appellant was trafficking cocaine to wit 287.73 grams with market value of 1,150,920/=. b. Whether the sentence passed was harsh/ excessive. MARSABIT HCCR APPEAL NO.E029 OF 2025 10 Issue 1: Proof beyond reasonable doubt 20. The cardinal principle in criminal law is that for one to be convicted, the standard of proof is and should be beyond a reasonable doubt and if there is doubt at all, the same should be exercised in favour of the accused. In defining the phrase beyond a reasonable doubt, the Canadian case of R v Lifchus [1997] SCR 320 the Judge stated as follows: - “Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of doubt to the accused and acquit him because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.” 21. Also, In Miller vs Minister of Pensions [1947] 2 All ER 372, 373, Lord Denning had this to say on proof beyond a reasonable doubt: “That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his MARSABIT HCCR APPEAL NO.E029 OF 2025 11 favour which can be dismissed by a sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short will suffice.” 22. Section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 provides as follows: “Any person who traffics in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable— (a) in respect of any narcotic drug or psychotropic substance (i)where the person is in possession of between 1- 100 grams to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment. (ii) where the person is in possession of more than 100 grams, to a fine of not less than fifty million shillings or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment. 23. The term “trafficking” is defined in section 2 of the said Act to mean MARSABIT HCCR APPEAL NO.E029 OF 2025 12 “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.” 24. The prosecution through the evidence of PW1, PW2, PW4 and PW6 did firmly establish that appellant was conveying cocaine packed in satchets which was retrieved/recovered from her Vagina, during the body search conducted by PW2 at Moyale police station. PW3 the government analyst did test the same and confirmed that the substance recovered was cocaine of 100% w/w purity as listed in the first schedule of the Narcotic drugs and Psychotropic substances (control) Act and PW5 a gazetted officer provided the certificate of valuation affirming that the recovered cocaine was valued at Kshs.1,150,920/=. 25. The appellant in her submissions alleged that there were inconsistencies in the evidence presented, that lead to miscarriage of justice, but having comprehensively reviewed the said evidence, I do not find any substantial/material contradiction, which could lead the court arriving at a MARSABIT HCCR APPEAL NO.E029 OF 2025 13 different conclusion. The appellant also alleged that she was not accorded a fair trial as guaranteed under Article 50(2) (g) and (h) of the constitution of Kenya 2010 as she was not informed of her right to choose to be represented by an advocate of her choice, yet the case she faced was complex and had grave penal consequences. 26. While it is important that litigants be apprised of their right to get representation, especially in criminal litigation, which carried severe penal consequences, in the primary suit the appellant was initially represented by counsel, Ms Odoyo, but later opted to represent herself for reasons best known to her. In Owidi v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 21977 (KLR) (23) (Judgment) Wendoh J. persuasively stated as follows; ‘Article 50 (2) (h) requires that an accused be informed of the right to be assigned counsel at the State expense if substantial injustice would otherwise result. He is also supposed to be informed of this right promptly. From the record, the appellant was not informed of the said right. However, the said right is not absolute. One has to demonstrate that substantial injustice would result to him if the right is not complied with”. MARSABIT HCCR APPEAL NO.E029 OF 2025 14 27.Going by the above pronouncements, it can be safely concluded that right to get legal representation at state expense is not automatic. It is one that will be achieved progressively within the available means and adequate numbers of legal counsel. In Kenya today only persons charged with murder or children in conflict with the law are entitled to automatic legal representative at State expense. Other people have to prove that they will suffer substantial injustice. 28. The Appellant was a literate adult, who fully understood and appreciated the trial court proceedings. At no time during the said proceedings did she ask to be assisted with a counsel and was able to cross examine all witnesses and also ably testified in defence she cannot late in the day allege to have been prejudiced, when she did not raise this issue during trial. This ground of appeal therefore fails. Issue 2: Whether the sentence passed was harsh 29. The Court of Appeal in the case of Benard Kimani Gacheru Vs Republic (2002) eKLR stated; “It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, MARSABIT HCCR APPEAL NO.E029 OF 2025 15 sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matters stated i.e. shown to exist. 30. Similarly In Mokela Vs The state (135/11)(2011) ZASCA 166, the supreme court of south Africa held that; “it is well established that sentencing remains pre- eminently within the discretion of the sentencing court. The salutary principle that the appeal court does not enjoy carte balance to interfere with sentences which have been properly imposed by the sentencing court.in my view, this includes the terms and conditions imposed by s sentencing court on how or when the sentence is to be served.” MARSABIT HCCR APPEAL NO.E029 OF 2025 16 31. Section 4(A),(ii) of the Narcotics and psychotropic susbstance ( control) Act, provides that where the person is in possession of more than 100 grams, to a fine of not less than fifty million shillings or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment. 32. The sentence passed was not manifestly high/excessive in the circumstances of the case, and no error or misdirection has been noted to warrant this court's interference with the same. 33. Finally on the last issue raised, Section 333 (2) of the Criminal Procedure Code requires the sentencing court to take account of the period spent in custody. The appellant was in custody from 23.10.2024 to 13.01.2025, when her cousin Moses Were Radido stood surety for her but later on 24.04.2025 withdrew from standing surety on grounds that he had credible information that she was about to run away from the court’s jurisdiction. The appellant was remanded in custody until 13.06.2025, when her case was finalized. She thus spent a total of about four months in custody, for which she is entitled to benefit from. E. DISPOSITION MARSABIT HCCR APPEAL NO.E029 OF 2025 17 34. The upshot is that the appellants' appeal against her conviction and sentence fails and is dismissed. But she will benefit and be given a remission of four (4) months to cater for the time spent in custody. 35. Right of Appeal 14 days. Judgment read, signed and delivered in open Court at MARSABIT this 22ND day of APRIL 2026. FRANCIS RAYOLA OLEL JUDGE Delivered on the virtual platform, Teams this 22ND Day of APRIL, 2026. In the presence of:- ………………………………………..Appellant ………………………………….For O.D.P.P ………………………………….Court Assistant MARSABIT HCCR APPEAL NO.E029 OF 2025 18