[2007] KEHC 1275 (KLR)
The court found that the prosecution failed to prove that the appellant was in possession of the narcotic drug as required by law. The evidence only established that the bhang was found in a cow shed wrapped in a khaki paper inside a black polythene bag, but did not show that the appellant had knowledge of its...
Source-derived case information.
- Citation
- [2007] KEHC 1275 (KLR)
- Parties
- Appellant: Sophia Mkaya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
- Legal Topics
- Possession of Narcotic Drugs, Evidence of Possession, Knowledge Requirement, Criminal Conviction, Appeal Against Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sophia Mkaya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was in possession of the narcotic drug as charged.
- 2 Whether there was sufficient evidence to prove knowledge or exclusive access to the location where the drugs were found.
Ratio Decidendi
The court found that the prosecution failed to prove that the appellant was in possession of the narcotic drug as required by law. The evidence only established that the bhang was found in a cow shed wrapped in a khaki paper inside a black polythene bag, but did not show that the appellant had knowledge of its presence or exclusive access to the cow shed. Without such evidence, the essential elements of possession were not established. Consequently, the conviction was unsafe and could not stand.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Criminal Appeal 111 of 2007
(From Original Conviction and Sentence in Criminal Case No. 1093 of 1996 of the Senior Resident Magistrate’s Court at Voi: J.M. Gandani – R.M.)
SOPHIA MKAYA…………....……………...……..APPELLANT
VERSUS
REPUBLIC………………………...…………..RESPONDENT
**********************
JUDGEMENT
The Appellant was upon trial on a charge of being in possession of narcotic drugs contrary to Section 3(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 convicted and sentenced to two years imprisonment. She has appealed against both that conviction and sentence.
Having perused the record I agree with both Mr. Mokaya for the Appellant and the learned State Counsel that there was no evidence to prove that the Appellant was indeed in possession of the alleged Cannabis Sativa (Bhang). The evidence before the court was that the bhang was found wrapped in a khaki paper inside a black polythene bag buried in the cow shed. There was no evidence that the Appellant had knowledge of the bhang being there or that she was the only one who had access to that cow shed.
In the circumstances I allow this appeal, quash the conviction and set aside the sentence. The Appellant shall be set free forthwith unless otherwise lawfully held.
DATED and delivered this 9th day of October 2007.
D.K. MARAGA
JUDGE