https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8480

Shande & 2 others v Republic (Criminal Appeal E102 of 2023) [2026] KEHC 8480 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8480 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E102 of 2023 DKN Magare, J June 3, 2026 Between Abdisalam Hirbo Shande 1st Appellant Abdirizak Hirbo Shande 2nd Appellant Abdirahim Hussein Sande 3rd Appellant and Republic Respondent (Being an appeal from the Judgement of Hon. Mrs. J. Irura Senior Principal Magistrate Kigumo Law Courts Delivered on 6th September 2023 in Kigumo Criminal Case No. 1100 of 2021 (E1108 of 2021) Judgment 1.This an appeal from the Judgement of Hon. Mrs. J. Irura Senior Principal Magistrate Kigumo Law Courts Delivered on 6th September 2023 in Kigumo Criminal Case No. 1100 (E108 of 2021). 2.The appellants had been charged with two other persons for trafficking of Narcotics contrary to Section 4 (a) of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. AAM, IAX, Abdisalam Hirbo Shande, Abdirizak Hirbo Shande and Abdirahim Hussein Sande, the particulars were that on 22.06.2021 at Kenol Township within Murang’a South Sub County, jointly with others not before, trafficked by transporting while using motor vehicle registration number KAW 349 B Mitsubishi FH Lorry, narcotic drugs, namely cannabis sativa(bhang), to wit, 12 Kg with market value of Ksh. 360,000/= which concealed in 12 bundles packed inside a spare wheel tyre in contravention of the said Act. 3.The appellants were tried, convicted and sentenced to Ksh.1,000,000/= in default 5 years imprisonment. AAM and IAS were acquitted. The court shall use initials to refer to them given that they no longer have a criminal record. The appellants filed a single memorandum of appeal dated 18.09.2023 and raised the following 6 grounds of appeal:a.That the Learned Magistrate erred in law and in fact by her reliance on purely hearsay evidence.b.That the Learned Magistrate erred in both law and in fact by her failure to entirely consider the evidence of the 3rd, 4th and 5th accused persons.c.That the Learned Magistrate erred in both law and in fact by her failure to consider the Investigation's evidence on findings of the investigation to the extent of the 3rd, 4th and 5th persons' innocence.d.That the Learned Magistrate erred by finding that the 3rd, 4th and 5th accused persons are guilty.e.That the Learned Magistrate in both law and fact by her failure to disregard the evidence of the 1st and 2nd accused persons.f.That the learned Magistrate's finding and decision were against the weight of the evidence adduced. 4.There is no provision for a joint appeal. Filling of appeals to the High Court is provided under section 247 of the Criminal Procedure Code as hereunder:Save as is in this Part provided-a person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and(2)An appeal to the High Court may be on a matter of fact as well as on a matter of law. 5.However, the appeal has already been admitted and the court cannot reverse the order admitting the same. Therefore, the court shall proceed from the point the matter was left by the court admitting the appeal 6.The AAM, IAS were arraigned in court on 28.06.2021. They pleaded not guilty. The matter was consolidated with E1205 and E1218 of 2021. AAM, IAS, and the appellants, pleaded not guilty. 7.The matter proceeded for hearing on 24.08.2022. PW1 was CPL Christopher Saina of Kenol Police Station. On 22.06.2021 while at Kenol police station he was called by the officer commanding station, Kenol. He was informed that a vehicle was parked at Nairobi stage at Kenol Township. He accompanied the OCS SERGEANT Eliud Sangok and found motor vehicle registration number KAW 349B Mitsubishi FH Lorry. One of its rear wheels had been removed and was supported by a jack. They found a conductor sleeping on the passenger’s side. They knocked on the vehicle and the conductor woke up and alighted from the vehicle. 8.The conductor told them that the driver had gone to repair the other tyre . Upon enquiry, the conductor indicated to the police that it is only the driver who knew why they were not using a spare wheel. The conductor took the OCS and the witness, to the garage. They proceeded to the place the driver was repairing the spare tyre was being repaired. When they came to the vehicle, they asked the driver why he was not using the spare tyre and the driver did not respond. 9.They then suspecting something was amiss. They requested the spare tyre to be removed and separated with the rim. They found 12 stones of some green material. They arrested the driver AAM. and the turn boy one IAS. it was his evidence that the police suspected something was wrong, when the driver and turnboy opted to repair the tyre instead of using the spare tyre . 10.On cross examination by AAM, he stated that he did not know where the vehicle had been before it left Moyale. 11.On cross examination by IAX, he stated that he told them that the driver had gone to repair the tyre . The appellants did not cross examine the witness. 12.PW2 was Sergeant Eliud Songok of Kenol Police Station. He was requested to join the OCS IP Onduori at about 2.00pm. They had received a tip off that the vehicle was carrying bhang. They found the vehicle packed at a stage. And the turnboy was sleeping in the passenger’s seat. They woke him up and he let the driver who was repairing the tyre. After repair they went to the vehicle and inquired from the driver, the reasons for not using the spare tyre . They removed a spare tyre and found 12 stones of bhang tied with a cello tape and a polyethene paper. They arrested the driver and conductor, AAM and IAS. 13.The appellants did not cross examine. On cross examination by AAM, he stated that they arrested him. On cross examination by IAX, he stated that, IAX had gone for tyre repair and they even came come back with them. 14.PW2 was a Government Analyst, Emmy Otieno attached to the Government Chemist Laboratories, Nairobi. She testified that she was gazetted vide Gazette Notice No. 6199 of 2021. She was a holder of Bachelor of Science degree in Food Science from the Technical University of Kenya and had worked as a Government Analyst for ten years. Her duties included the analysis and identification of foodstuffs, drugs, and related substances. 15.She stated that she received a request from Corporal Fredrick Muia to examine twelve bundles of plant material that had been submitted to the Government Chemist. Her task was to ascertain whether the material constituted a narcotic drug. Upon analysis, she established that the plant material was cannabis sativa, a narcotic drug within the meaning of the law. She prepared and signed the analyst's report, which she produced as an exhibit before the court. The witness was not cross-examined. 16.PW4 was corporal Fredrick Muia attached to DCI Gatanga Ithanga/Kakuzi Subcounty. He was previously attached to Murang'a South Sub-County and was the investigating officer in this matter. He testified that acting on intelligence, the police intercepted the subject motor vehicle and conducted a search. Upon inspection, they noted that the vehicle had a puncture. The owner of the vehicle instructed them not to remove the spare tyre, which was mounted underneath the vehicle, but to wait for a replacement tyre to be brought from Nairobi. 17.The witness stated that the owner's insistence aroused their suspicion. Consequently, they removed the spare tyre and upon opening it, recovered twelve stones of plant material concealed inside. The substances were wrapped in khaki paper and secured with adhesive tape. The exhibits were subsequently forwarded for analysis and were confirmed to be cannabis sativa. 18.They recovered cannabis from the rim of the vehicle and booked AAM and IAS. The suspects gave the police the names of the owners. He charged AAM and IAS and summoned the appellants. He was instructed to release the vehicle and the appellants, which he did not do. He produced the reports, spare tyre , rim, photographs of motor vehicle registration number KAW 349 B. 19.The second appellant was said to be the owner, the first and third appellant were the managers. The first appellant was based in Nairobi while the 3rd Respondent was based in Moyale. 20.AAM was the driver while IAS was the conductor. On cross examination by AAM he stated that he did not know how long AAM was employed as a driver. On cross examination by IAS, he stated that IAS was left inside the vehicle, which he could not have left after it developed a puncture. 21.On cross examination by the 1st Appellant, the witness stated that he had acted on instructions from his superiors in effecting the arrests. He further testified that there was no communication between the 1st Appellant and AAM or IAS. The witness also stated that he was subsequently instructed to withdraw the charges after it was determined that there was insufficient evidence to support the prosecution. 22.On cross examination by the second appellant, he stated that the vehicle was managed by two persons. However, the vehicle belonged to the second appellant. He stated that the driver had instructions not to remove the spare wheel. 23.On cross examination by the 3rd Appellant, he stated that he did not find him with any exhibit. On re-examination, he stated that the vehicle developed a puncture between Makuyu and Kenol. The driver removed the tyre and placed it on the sand. the punctured wheel had been placed on top of sand while the spare was underneath the sand. The owner had instructed that the tyre should not be removed. 24.The state closed its case and the appellants were found with a case to answer. Section 211 of the criminal procedure code was complied with. The appellants opted to remain silent. 25.DW1, AAM, the first accused person, testified that on 1300 hours on 18.08.2021 he left Nairobi for Moyale. While on the journey, he received a call informing him that the vehicle was to be loaded with luggage. He proceeded with the trip and arrived feeling very tired from the journey. He stated that he left the turn-boy and the 1st Appellant to deliver the luggage while he waited for the next consignment to be loaded. According to his testimony, the motor vehicle was thereafter parked in the owner's yard as they awaited further instructions and loading arrangements. 26.On 21.6.2021 he was called and told of a trip to make. He was given money to buy sand and pay County Government and mileage. He started the journey and came to Movila at 9.00pm. The vehicle was loaded with sand and continued with sand. The tyre burst between Kenol and Makuyu. He asked the conductor to check, it was risky to change the tyre as the road was under construction, they moved to Kenol. He was called by the brother to the second appellant Abdi Nassir and he informed the said brother that they we changing the tyre . He asked that to talk to the second appellant. He instructed him not to remove the spare wheel underneath the vehicle but repair the one that was burst first. 27.He alighted and went for repair. He was informed that the police were outside the shop. They police arrested him and took him back to the vehicle. He was asked why he was not using a spare wheel and said he was instructed by the owner not to use it. They removed the rim of the spare tyre and found some items. They moved to Makuyu Police Station. 28.On cross examination, he stated that he had only worked for two months on the vehicle. He did not know if there was anything inside the rim. On cross examination by the court, he stated that the vehicle was handed over by the second appellant. On cross examination by the first appellant, he stated that he was in Moyale when they arrived there. On cross examination by the second appellant, he stated that the first appellant first called him and then Abdinassir told him that he should not touch the spare tyre . The third appellant did not cross examine. 29.IAS testified that he was a turn boy. On 18.06.2021, he offloaded the vehicle and retried it to the owners. He returned on 21.06.2021 when AAM called him that there was a trip to make. At the time the witness was in Ethiopia, the vehicle was taken to Moyale police station where they started their journey from. they loaded sand at Movila and eft for Nairobi. They had a tyre burst at Kambiti area. They moved to Kenol. He was about to remove the spare tyre when the driver was called on phone and instructed not to remove the spare tyre and it was better to buy a new one. They looked for a new tyre in vain they opted to repair the old one. They were to send a new one from Nairobi. They waited until the police found them at 2pm. The police asked why they were not using the spare tyre but they said the owner instructed them not to. The police removed the spare tyre send recovered sealed stones of bhang. 30.On cross-examination, the witness stated that upon reaching their destination, they handed over the motor vehicle to the relatives of Abdisalam at his home and thereafter left. He testified that DW1 had called him on 21.06.2021 and informed him of the trip. 31.The witness further stated that the spare tyre was never removed at any point during the journey. He explained that one of the tyres burst while the vehicle was on a narrow road, necessitating their movement to Kenol for repairs. At Kenol, he removed the damaged tyre and was preparing to fit the spare tyre when the driver received instructions directing that the spare tyre should not be touched. 32.He also testified that the motor vehicle was said to belong to the 2nd Appellant. 33.DW3, Hussein Aden, testified on the whereabouts of DW1. He stated that he escorted DW1 to where the lorry was parked and waited as DW1 boarded the vehicle and departed. DW4 testified that he transported DW2 from Ethiopia using a motorcycle. DW5 stated that he contacted the owner of the motor vehicle, who allegedly advised the driver to plead guilty. 34.The appellants changed their positions and stated they were to give sworn evidence. DW6 was Abdirahim Hussein Sande. The first appellant testified as DW1. He stated that he did not know the charges he was facing. He knew the subject motor vehicle as it belonged to his cousin, the second appellant. 35.The appellants subsequently changed their position and indicated that they would give sworn evidence. DW6 was Abdirahim Hussein Sande, while the 1st Appellant testified as DW1. He stated that he did not know the specific charges he was facing. He testified that he was familiar with the subject motor vehicle, as it belonged to his cousin, the 2nd Appellant. He further stated that he had stopped working under a manager in March 2021 and denied having any communication with DW1. He testified that he last spoke to DW1 approximately two months prior to June 2021 and that no communication between them was recovered from his mobile phone. 36.He stated that he was informed by his cousin that the vehicle had been arrested, prompting him to go to court since he knew the driver, at which point he was arrested. He further testified that on 21 June 2021, he was in Maralal and did not speak to DW1. According to him, the police seized his phone but did not recover any communication linking him to DW1. He further stated that DW1 reported to the 3rd Appellant. 37.The Abdisalam Shande Hirbo, testified as DW7. He stated that he was the owner of the said motor vehicle. Between 21.06.2021 and 22.06.2021 he was in Busia, where he had taken his wife to hospital. The first appellant used to manage the vehicle but stopped three months prior to June 2021. He was a cousin. On 22.06.2021, he had not spoken to DW1, DW2 and DW6. DW1 only called after the vehicle was arrested. The vehicle was not ferrying bhang. He called DW6 to go and check the vehicle but he was arrested. He did not call the third appellant as he was in Moyale. The first accused was in Maralal when he was called. He just saw DW1 driving the vehicle as he was employed by the third accused. 38.On cross examination by DW1, he stated that he had left his vehicle in management of his brother. He said it was the duty of the conductor to have the vehicle repaired. On cross examination by DW2, he stated that it was the first time DW2 Was arrested with bhang. He said he was not arrested when the vehicle was arrested. 39.DW8 was Abdirizak Hirbo Shande. He knew DW1 as the driver of the subject motor vehicle and DW2 as the conductor. He stated that DW6, Abdirahim Hussein Sande was the manager before he left the vehicle to DW8. The vehicle does not operate bhang business. On 22.06.2021, he was in Moyale. He received a called from DW1 that he had a customer who needed sand so that I could give him money which he duly did at 9.00am. He was a brother to Abdisalam Shande Hirbo. 40.They were to load the vehicle after Marsabit. After 2 days he was called by a police officer from Makuyu Police Station. He found his brother who had been summoned before. The conductor was a bit new. When they got to the station the police did not find any communication between them and the driver. The driver sent money from Nairobi and he released the vehicle from Moyale. He stated that there is a Sacco that deals with the vehicle and brokers who load the vehicle when it leaves Nairobi. DW1 and DW2 were the ones who offloaded the vehicle in Moyale. The vehicle is kept in a manyatta belonging to no-one. SUBMISSIONS 41.The respondent submitted that the duty of the second appellate was set out in the case of Okeno v Republic [1972] EA 32 at 36, where, the former, Eastern Africa Court of Appeal stated as follows in regard to the duty of the Court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters v. Sunday Post, [1958] E. A. 424. 42.The respondent conceded that hearsay evidence is inadmissible in law. However, it was their submission that there was sufficient evidence of communication involving the 1st appellant. In support of this position, they relied on the testimony of DW3. It was further submitted that the prosecution evidence remained unchallenged and that the failure to produce call data did not weaken the prosecution case. The respondent contended that the evidence adduced was corroborated and therefore reliable. Reliance was placed on section 2 of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. It was further submitted that there was evidence establishing that the appellants had knowledge of the contraband. It was argued that physical absence from the scene does not absolve an accused person from criminal liability. The respondent further cited section 21 of the Penal Code as follows:When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. 43.It was submitted that the appellants’ evidence amounted to half-truths and mere denials. Although the investigating officer appeared to exonerate the appellants, counsel argued that the totality of the evidence on record nonetheless placed the appellants as offenders. It was further submitted that the evidence of DW1 and DW2 was never discredited during the trial. 44.On sentence they submitted that the same is proper. Reliance was placed on the case of Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR), where the court of appeal[ Chunga, C.J, Shah & Bosire, JJ.A. ] stated as follows:It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.The position was stated succinctly by the Court of Appeal for East Africa in the case of OGOLA s/o OWOURA VS REGINUM (1954) 21 270 as follows:-The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James V R., (1950) 18 E.A.C.A 147:It is evident that the Judge has acted upon some wrong principle or overlooked some material factor.To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R. V Sher shewky, (1912) C.C.A. 28 T.L.R. 364. 45.The respondent submitted on the guiding principles on interference with sentence, the respondent relied on the case of S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA) (19 March 2001). In that south African case, the Supreme Court of appeal of South Africa [Harms, Marais, Cameron JJA Chetty Et Mthiyane AJJA] held as follows:12.The mental process in which courts engage when considering questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by legislation or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be a just and appropriate sentence. A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as shocking, startling or disturbingly inappropriate.It must be emphasized that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation. 46.It was submitted that sentencing is the discretion of the court. The respondent placed reliance on the case of Shadrack Kipkoech Kogo v Republic Criminal Appeal Number 25 of 2003, where the Court of Appeal held that sentencing is at the discretion of the trial court and that an appellate court can only interfere or intervene if it is shown that the trial court took into consideration irrelevant factors, applied wrong principles of the law or that the sentence was excessive and therefore an error. They submitted that the sentence for trafficking was proper. 47.The appellants filed submissions dated 25.11.2025. They submitted that the court wholly and or substantially relied on hearsay evidence. They submitted that During trial, no evidence was ever produced to demonstrate that the 4th Accused person had called the 1st Accused person on the day in question. It was submitted that the vehicle had come all the way from Moyale and was ferrying sand to Nairobi. They submitted that the vehicle was handed over to the DW1 and DW2, to transport the said sand. 48.It was submitted that, as a matter of fact, the statements made by the 1st Accused were denied by the 4th Accused person. They argued that, in the circumstances, the legal burden lay upon the party making the allegation to prove it, as codified under section 107(1) of the Evidence Act. The said section provides as follows:107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 49.The appellant relied on the case of Kariamburi (Deceased) v Four by Four Safaris Company Ltd & another (Civil Appeal 345 of 2000) [2004] KECA 65 (KLR) (10 December 2004) (Judgment). 50.It was submitted that the court erroneously relied on the unsupported statements of DW1 and DW2, who were in fact found in possession of the narcotics. Counsel argued that they were therefore not truthful witnesses. Reliance was placed on the case of Republic v Langat & another (Criminal Case E026 of 2020) [2024] KEHC 5016 (KLR), where Ong’udi J, as she then was stated as follows:In the case of Kinyathi v Republic [1984] e KLR the Court of Appeal had this to say of hearsay evidence:4.Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying offers as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence5.The rule against hearsay evidence is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of stated facts.7. The evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is not admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made. 51.It was further submitted that the trial court failed and or refused to consider the appellants’ evidence. It was further submitted that the prosecution contradicted itself by virtue of the letter from the ODPP preferring the withdrawal of charges against the Appellants herein. Further reliance was placed on the case of Republic v Okumu [2025] KEHC 11959 (KLR), where R. Nyakundi J, held as follows:I put reliance in the decision of the case of Mbugwa Kariuki v The Republic [1976-80] 1 KLR 1085 where the emphasized: That the burden of proof remains on the state throughout to establish the case against the accused beyond reasonable doubt. Where the defence raises an issue such as provocation, alibi, self-defence, the burden of proof does not shift to the accused, instead the prosecution must negate that the defence beyond reasonable doubt and the accused assumes no onus in respect of any such defence. 52.It was submitted that the prosecution did not prove its case and that its evidence was contradictory. Counsel argued that the inconsistencies in the prosecution evidence rendered the case unsafe and unreliable. The court was therefore urged to allow the appeal. Analysis 53.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, addressed this issue as follows:-On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen. 54.An appellant on a first appeal is entitled to expect that the evidence as a whole will be subjected to a fresh and exhaustive examination, and that the appellate court will reconsider and re-evaluate the entire record in order to draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 55.The issue in this case is whether the prosecution proved is case to the required standards. 56.To begin with, the Court must proceed on the basis that the prosecution bears the burden of proof at all times. In the oft-quoted decision of Viscount Sankey L.C. in Woolmington v DPP [1935] A.C. 462 at page 481, the Court held as follows in relation to the legal burden of proof in criminal matters:Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 57.That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada explained the standard of proof as doth:-The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt. 58.The legal burden is the burden of proof which remains constant throughout the trial. It is the obligation of the state on a criminal trial to establish the facts and contentions that will support its case. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 59.The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 stated that:The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 60.The appellants were charged with the offence of trafficking, which is punishable under section 4 (a) of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The section provides as follows:Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her 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 shilling 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;(b)in respect of precursor chemicals or any substance, other than a narcotic drug or psychotropic substance, which he or she represents or holds out to be a narcotic or psychotropic substance-(i)where the person is in possession of 50 mg or more, to a fine of not less than twenty million shillings or imprisonment for life; and(ii)where a person is in possession of 50 mg or less, to a fine of not less than ten million shillings, or to imprisonment to a term of not less than ten years, or to both such fine and imprisonment. 61.further under section 2 of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 illicit trafficking is provided as follows:illicit traffic in relation to narcotic drugs and psychotropic substances meansa.Cultivating any coca bush or gathering any portion of a coca plant;b.Cultivating the opium poppy or any cannabis plant;c.Engaging in the conveyance production, manufacture, possession, sale, purchase, transportation, ware-housing, concealment, use or consumption, importation, exportation or transshipment of narcotic drugs or psychotropic substances; ord.Handling or letting out of any premises for the carrying on of any of the activities referred to in paragraphs (a) to (c); 62.Having evaluated the record and the charges that were facing the 5 persons, evidence, find that the duty of the prosecution was to prove:a.That the substance was cannabis sativa/Bhang.b.The same was being conveyed.c.That the amount is as per the charge sheet.d.That the perpetrator was the appellant. 63.The first two accused ae not part of the appeal, hence the court will restrain itself from making any factual determinations, that may affect any appeal involving them. the court will thus deal with the 4 questions seriatim. 64.First, it was confirmed that the substance in question was cannabis sativa. Secondly, it was also proved that the quantity being conveyed corresponded with that stated in the charge sheet. The only remaining issue for determination was whether the appellants were the perpetrators of the offence. It is agreed with the prosecution that physical presence at the scene is not a prerequisite for commission of the offence. What is required is knowledge and participation or involvement in the criminal enterprise 65.The cannabis was in a vehicle belonging to Abdisalam Hirbo Shande. However, DW1 and DW2 were the ones in possession of the vehicle. It was necessary that there be a causal link between the cannabis and the appellants. The only evidence purporting to link the appellant was that of the first and second accused. They are what in law is known as accomplices. For accomplice evidence to be admitted, there has to be a very specific protocols before they are accepted. The accomplice evidence must be free from error and be corroborated. In the case of Nguku v Republic [1985] KECA 45 (KLR), the court of appeal [Hancox JA, Platt & Gachuhi Ag JJA] stated as follows:This proposition receives support from the passage which Mr Menezes cited from Republic v Ndara Kuruki [1945] 12 EACA 84, which was a case mainly concerned with the extent to which an accused’s statement can be used against his co-accused, and in which the court said, as regards accomplices, at page 86:A point which is sometimes lost sight of in considering accomplice evidence is that the first duty of the court is to decide whether the accomplice is a credible witness. If the court, after hearing all the evidence, feels that it cannot believe the accomplice it must reject his evidence, and unless the independent evidence is of itself sufficient to justify a conviction the prosecution must fail. If, however, the court regards the accomplice as a credible witness, it must then proceed to look for some independent evidence which affect the accused by connecting or tending to connect him with the crime. It need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. But in every case the court should record in its judgment whether or not it regards the accomplice as worthy of belief. 66.Evidence of an accomplice was also addressed in the case of Shida Kazungu Baya & 4 others v Republic [2008] KECA 166 (KLR), the court of appeal [R.S.C Omolo, E.O. O’Kubasu and J.W. Onyango Otieno] addressed the question of accomplice evidence as follows:And as to the evidence of Furaha which was evidence of an accomplice, this Court considered at length a similar situation in the case of Kinyua vs. R [2002] I KLR 257 and held, inter alia, as follows:7.The firm rule of practice is that the evidence of an accomplice witness requires corroboration. It is however a rule of practice only and in appropriate circumstances, the court may convict without corroboration if it is satisfied that the accomplice witness is telling the truth upon the court duly warning itself and the assessors, where the trial is with the aid of assessors, on the dangers of doing so.8.Before corroboration can be considered, a court of law dealing with an accomplice witness must first make a finding as to the credibility of the witness. If the witness is so discredited as not to be worthy of any belief, that is the end of his evidence and unless there is some other evidence, the prosecution must fail. If the court decides that the witness though an accomplice witness, is credible then the court goes further to decide whether it is prepared to base a conviction on his evidence without corroboration. The court must direct and warn itself accordingly.9.If the court decides that the accomplice witness’ evidence, though credible, requires corroboration, the court must look for, find and identify the corroborative evidence. 67.The evidence of DW1 and DW2 could not be used against the appellant since they were accomplices. There was no evidence linking the appellants to the Cannabis. Even circumstantial evidence cannot link the appellants to the crime. 68.Even if the court considers circumstantial evidence, the same must be inconsistent with the accused’s innocence. If there are co-existing circumstances that may render the appellant not guilty, the court must give them the benefit of doubt. in the case of Mwachongo v Republic [2016] KECA 521 (KLR), the court of appeal [MS Asike-Makhandia, W Ouko & K M'Inoti, JJA]addressed the question of benefit of doubt as follows:On the face of it, an attractive argument is that there is doubt as to the age of the victim and that the benefit of the doubt ought to be given to the accused person, so that the less severe sentence is imposed. Thus where the victim is say, 15 years and 2 months, she would be treated as 16 years so that the accused person is sentenced to 15 years imprisonment, as though the victim was aged between 16 and 18 years, instead of 20 years for a victim of 15 years.34.Indeed, in Alfayo Gombe Okello v. Republic, (supra), this Court went about the issue as follows:The evidence of the mother was that she (the victim) was born in 1992. No month or date is mentioned. If she was born between January and July 1992, she would obviously have been above 15 years of age but below sixteen when the offence was committed. It seems to us that there is an obvious lacuna in the Act as there is no provision for punishment where the child is between the age of fifteen and sixteen years. Section 8 (4) caters for the ages of sixteen to eighteen years. We must therefore take the construction which is favourable to the appellant. In our view, there is a reasonable doubt over the actual age of the child as at the time of commission of the offence. The onus was on the prosecution to clear such doubts, failure to which the benefit would go to the appellant. We so find. 69.Was there circumstantial evidence connecting the appellants to the case. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the court of appeal [P. Kihara Kariuki, PCA, M’inoti & Murgor, JJ.A] had this to say on circumstantial evidence:However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial. 70.The state failed to link any call to the appellants. Further, even if instructions were given to repair instead of using getting the spare wheel, it only creates suspicions. It is nothing more than suspicions. in the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR), the court of appeal, [Makhandia, Ouko & Murgor, JJ.A.], posited as follows:All this is but suspicion and speculation. This can never be the basis of a conviction. In the case of Michael Mugo Musyoka v Republic (2015) eKLR we observed:We have looked at the evidence on record, there is no evidence or testimony to prove that there was any contact between the genital organs of the appellant with that of the minor. We are of the considered view that the evidence of PW1 was hearsay and did not carry much weight. We say so because she was not present at the house and did not witness what actually happened. She relied on what her daughter C had allegedly told her. Without the evidence of the said or eye witness we find that the prosecution did not prove that the appellant had intentionally and unlawfully indecently touched the child.......we find that the case against the appellant was based on a mere suspicion. In Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998, this court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt. This is because a conviction has the effect of taking away the accused’s freedom and at times life. 71.Further in the case of Sawe v Republic [2003] KECA 182 (KLR), the court of appeal[RO Kwach, AA Lakha & EO O'Kubasu, JJA], addressed the issue of suspicion as follows:We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence 72.All in all, the court finds that the conviction of the appellant was on basis of shaky evidence. The conviction is unsafe and as such it is set aside. The court does not need to deal with sentences. Order 73.The upshot of the foregoing is that I make the following orders: -a.The Appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellants are set free unless otherwise lawfully held. The appellants shall have their fines refunded, in case they paid.b.14 days right of appeal.c.File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:N/A for the AppellantMr. Owade for the AppellantMr. Kihara for the state.Court Assistant –Martin