[2022] KEHC 1552 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

HIGH COURT CRIMINAL APPEAL NO. 7 OF 2020

SIMON FOSII OUMA

(ALIAS ABDALLA OUMA ALIAS AKINO SANDRA).......................APPELLANT

VERSUS

REPUBLIC..............................................................................................RESPONDENT

JUDGEMENT

(Being an appeal from the decision of; Hon K Cheruiyot

Principal Magistrate, delivered on, 18th December, 2019 vide

Chief Magistrate Criminal Case No. 595 of 2019 at Milimani, Nairobi)

1. On the 3rd April 2018, the appellant was arraigned before the Chief Magistrate’s courts at Milimani, Nairobi charged vide; Criminal Case No. 595 of 2018, with the offence of; trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Act, No. 4 of 1994 (herein “the Act”).

2. The particulars of the charge states that, on the 21st day of March 2018, at unknown time within Nairobi County, he sent a parcel S/Nos. No. 10118456 and 1011845, through GPO E.M.S office which contained, 1330. 7 grammes of; Methamphetamine with a street value of Kshs 10,645,600. in contravention of the Act.

3. The appellant pleaded not guilty to the charges and the case proceeded to full hearing, with the prosecution calling total of seven (7) witnesses while the appellant led his own evidence and did not call any witness.

4. The prosecution’s case in a nutshell is that, on 16th March, 2018, (PW1) Asha Chepng’etich, an employee of Postal Corporation of Kenya was assigned by her boss, a checklist referred to as; “EM3” to deal with dispatching international mails. She was checking on the weight of the parcels against the declared custom value.

5. That, she found two parcels marked; EMS Tracking Bar Code Nos. EE101184572 and EE1041184569, addressed to Sandra Tui, in New Zealand and sent by Akino Sandra of; P.O. Box xxxx 90166 Phone No. 0733xxxxxx. Upon checking the postage weight of the parcels as against the declared custom value, for what was stated to be fabric weighing over 3. 5 kg, she discovered that the two were not tallying. She immediately alerted the security personnel of the institution.

6. That, Mr. Odinga of the Anti-Narcotics Police was informed of the parcels. He gave instructions that, they be kept in the strong room as it was a Friday and the Ant- Narcotics personnel were not readily available. The officers from Ant- Narcotics Unit arrived at the Kenya Postal Corporation on, 21st March, 2018 and opened the suspicious parcels. That, the parcels were found to contain certain flour substance. An inventory of the parcels and/or content was prepared and signed by all the parties present except the appellant.

7. Subsequently, the substance which was suspected to contain a narcotic drug or psychotropic substance was taken to the Government Chemist and analysed by; Dennis Owino Onyango, a Government Analyst. That, the white crystals were found to be Methamphetamine, which is stated in the Second Schedule of the Act, as a psychotropic substance. The analyst report dated; 27th March 2018 was produced as an exhibit.

8. On 20th March 2018, the investigating officer wrote to Airtel Company to furnish him with the ownership details of the phone number 0733xxxxxx and the call data was provided. That, upon receipt of the data a man hunt was mounted for the owner of the number. On 28th March, 2018, the appellant was arrested, along River road where he operates shoe shiner business.

9. At the close of the prosecution case, the learned trial Magistrate ruled that, the appellant had a case to answer and placed him on his defence. The appellant testified that, he works as a Shoe shiner at River Road. That, on 28th March, 2018, at around 10 am he received a call on his Zain line number; 0733 xxxxx, made by a person he thought was his customer. After while a person told him to shoe shine for him his shoes and was joined by others totalling four people. The fifth person joined them and told him that he wanted to talk to him and requested for his phone.

10. That, he gave out his ID card and the phone and was arrested. At the police station he learnt that, the officers were looking for a person by the name of Akino Sandra. That, he had to identify Akino Sandra or be charged with having a parcel containing narcotic drugs.

11. The appellant denied knowledge of one; Sandra and/or ever going to Ronald Ngara Post Office to send a parcel. That, he only saw a parcel that had his telephone number. He also denied knowledge of the inventory produced in court.

12. At the conclusion of the case, the learned trial Magistrate delivered a judgment dated; 18th December 2018, and found the appellant guilty as charged and convicted him. He was subsequently, sentenced to pay a fine of; Kshs 30, 939, 800 and in addition, imprisonment for life.

13. However, the appellant is aggrieved by the conviction and sentence and appeals against the same on the following grounds:

a) That, the learned trial Magistrate erred in both law and facts by failing to find that, the prosecution did not adequately prove their case beyond reasonable doubt;

b) That, the learned trial Magistrate erred in both law and facts when he convicted him in the present case yet failed to prove the allegations against him that he was found with some harmful substances for human consumption;

c) That, the learned trial Magistrate erred in both law and facts when he relied on contradictory evidence to convict him;

d) That, the learned trial Magistrate erred in law and facts by failing to make an adverse inference as regards to the inconsistencies and contradictions in the evidence brought forward by the prosecution hence arrived at a decision which was not satisfactory;

e) That, the learned trial Magistrate erred in law and facts by failing to find essential witnesses, necessary to prove basic were not availed hence; section 150 of the Criminal Procedure Code was violated;

f) That, the provisions of section 169(1) of the Criminal Procedure Code were not adequately complied with in relation to his defence statement.

14. However, the appeal was opposed based on grounds of opposition dated 29th November, 2018 which states as follows: -

a) The appeal lacks merit, is misconceived and unsubstantiated;

b) The appeal is an abuse of the court process since the appellant was properly convicted before the trial court and that the prosecution discharged its burden of proof beyond reasonable doubt;

c) That, the appeal lacks merit and the same should be dismissed in its entirety.

15. The appeal was disposed of through filing of submissions. The appellant submitted, in a nutshell that, the prosecution did not call any witness from Ronald Ngala Postal Office, to assist in identification of person who delivered the parcels there and/or signed the declaration form.

16. Further, the owner of the postal address box number; 1220-90166 was not ascertained. In addition, no investigation was conducted to ascertain who Sandra Tui of New Zealand is, yet according to PW1 and PW2, she had a very specific address and telephone number. Furthermore, the inventory indicates the owner as; Fussi Ouma alia Akino Sanda, and therefore the question that arise is whether; that is the same person as the one on the charge sheet and how the police arrived at the conclusion that, it was a male person.

17. The appellant further submitted that, the scene of crime personnel who was an essential prosecution witness, was not called to testify on how the parcels were packed before and after opening them. Further, PW3, Sergeant Salome Ayuma alluded to a “claim of custody document” which was not in court when she was testifying.

18. Furthermore, PW4 indicated that, he took sample substances from four (4) packages yet only two (2) were produced in court and that, the serial number on the parcels differed from those on the charge sheet. That, even then, when the inventory was prepared and signed, the appellant was not present.

19. It was further submitted that, PW5 stated that, all the call records were under identification number; 10336376 which had no nexus with the appellant. The appellant prayed to be allowed to produce his identification and job card, erroneously omitted to be produced by the learned defence counsel during the trial.

20. Finally, the appellant submitted that, the sentence meted upon him is harsh and excessive in the circumstances, considering he is a first offender, and that case law provides that, life imprisonment option under section 4(a) of the Act is a maximum sentence and not a mandatory one.

21. However, in response submissions, the Respondent submitted that, PW5 obtained call data for the phone number; 0733xxxxxx, which led officers to locate the accused who operated as a shoe shiner. That, the appellant picked the call that led to his arrest. The telephone line was the same one indicated on the parcel as senders contact details. As such, the prosecution adduced adequate evidence.

22. The appellant filed “rebuttal” submissions arguing that, indeed the trial court noted in the judgment that, no witness from Ronald Ngala Post Office was called to confirm the officer who received the parcel before it was sent to international dispatch and referred to it as a serious omission.

23. In addition, the appellant’s identity card number was not indicated on parcels. That, the name appearing thereon is that of a female sender and therefore the officer who received the parcel ought to have been called to shed more light on who deposited it. Further, none of the prosecution testified that, the appellant is Simon Fusii alias Sandra Akino.

24. At the conclusion of the entire matter I note that, the appellant was convicted of the offence of; trafficking under section 49(a) of the Act which states; -

“Any person who trafficks 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 to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life”

25. At the outset, I take cognizance of the fact that, the role of the first appellate court is to; evaluate the evidence adduced afresh and arrive at its own conclusion noting that, it did not benefit from the demeanor of the witnesses. This was well articulated by the Court of Appeal in the case of; Okeno vs. Republic (1972) EA 32, that: -

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) 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”.

26. In the instant case, the appellant has raised in his grounds of appeal basically four issues being; failure to call key witnesses, contradictions in the prosecution witness evidence, inadequate evidence to connect him to the offence and failure to consider the defence. In a nutshell inadequate evidence to sustain a conviction.

27. Having considered the arguments advanced by both parties herein, I find that, the key issues that, the prosecution ought to have proved are whether: -

a) The appellant is the one who delivered the parcel to the post office;

b) The parcels contained narcotic drugs; and

c) The defence offered is plausible.

28. I shall first deal with the 2nd issue which is not contested. In that regard, PW4 Dennis Owino Onyango who examined the recovered whitish powder substance confirmed vide a report dated 27th March, 2018, that it contained a narcotic and/or psychotropic substance.

29. As regards the issue of whether it was trafficked, I find that, the Act defines trafficking as follows: -

“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; or

d) The selling or supplying in accordance with the provisions of this act, of any narcotic drugs or psychotropic substances by a registered pharmacist;

30. The particulars of the charge sheet herein state that; on 21st March 2018, the appellant sent the subject parcels through GPO, E.M.S office. The key word is “sent”. Apparently the learned trial Magistrate alludes to the word “delivery” in his judgment but that word is not in the particulars of the charge sheet.

31. Be that as it were, the word “sent” is stated to be similar to: - “appointed, commissioned, committed, consigned, delegated, directed, discharged, dispatched, emitted, gone, issued, mailed, ordered, posted, transmitted, transported” (Dictionary.com) and delivering and dispatching, (Cambridge English dictionary). The aforesaid definition of trafficking includes; delivery and therefore the word “sent” is well within that definition.

32. However, the key question is; who sent the parcels to the Postal Corporation at GPO. The key evidence in this regard, is the evidence of the recipient of the parcel at the Corporation and/or the documentary evidence relating to the same. It is settled law that, in a criminal cases the prosecution has the burden to prove the particulars of the charge beyond reasonable doubt. It suffices to note that, in the instant matter, the prosecution did not call the person who received the parcels at the GPO. In fact, the trial court was live to the same and expressed itself thus: -

“The investigators seem to have missed or failed to check with Ronald Ngara Post Office to confirm who received the parcel before it was sent to the international dispatch desk where Asha Chepngetích Musa who found it suspicious hence the investigations that led to this accused being charged.

That was a serious omission by the investigating officer. The court is not left to consider whether the evidence on record. It is safe to conclude that it is the accused person who sent the parcels”.

33. At the conclusion the learned trial Magistrate held that,

“The prosecution clearly lined the accused person to the parcels in question. The mobile line is the one indicated as belonging to the sender of the parcel though (sic) the name is indicated as akino sandra who the accused vehemently denied is his sister”.

34. With utmost due respect to the finding of the trial court, the identity of the person who delivered the parcel to the post office was central to the prosecution case. The omission to adduce evidence in proof thereof was serious as observed by the trial court and fatal to the prosecution case. The accused denied having been to the post office. In his defence he stated; “I have never entered that post office” he went on to state; “Ronald Ngara Post Office is unknown to me. I only know Ronal Ngara street. I board matatu to Dandora outside Family Bank on that road.”

35. It is evident from the conclusion of the trial court that, it relied on the evidence of the mobile phone in possession of the appellant. In my considered opinion that evidence was not sufficient for the following reasons:

a) The name of the sender of the parcels is; Akino Sandra, by all means that is a popular name of a person of a person of female gender. The appellant herein is of male gender;

b) The sender’s address is indicated as P.O Box number xxxx-90166, apparently issued by the subject Corporation herein. Yet there is no evidence that, the same belongs or belonged to the appellant. In cross examination the investigating officer stated that; “I did not establish the owner of the postal address or whoever entered the phone number;

c) The recipient address is clearly indicated as; Sandra Tui of New Zealand yet no investigation was carried out to establish whether the said recipient was known to the appellant. The investigating officer cross examination thus stated; “the address was at an address in New Zealand. A signal was sent to Interpol to establish the contact of the address in New Zealand but we had not received a response by the time I left New Zealand.”

d) Furthermore, being familiar with the process of delivery of parcels to post office for onward transmission and/or taking judicial notice thereof, the sender of a parcel must fill in certain documents, in particular a declaration form. The prosecution evidence did not link the appellant to this form. The forensic exercise of establishing the maker was not done

36. Pursuant to the aforesaid, the prosecution case was not proved beyond reasonable doubt. It is possible that the appellant was involved in the offence just as it is possible that someone was and used his mobile number for whatever reasons. The evidence of the ownership of the identity number of the scene was very crucial just as the evidence of the person who physically presented the parcel at the post office. In the absence of this evidence the conviction was not safe and cannot be sustained.

37. I therefore, allow the appeal on conviction, quash the conviction and set aside the resultant sentence. I order that, the appellant be forthwith set free, unless otherwise lawfully held.

It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 14TH DAY OF MARCH, 2022.

GRACE L NZIOKA

JUDGE

In the presence of: -

Appellant present at Kamiti Maximum Prison

Ms Odour for the Respondent

Edwin Ombuna Court Assistant