[2015] KEHC 7718 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.123 OF 2012

(An Appeal arising out of the conviction and sentence of HON. U.P. KIDULA - CM delivered on 10th February 2011 in Kibera CM.C. CR. Case No.702 of 2010)

SULTAN SHEHLA………………….………………………………….APPELLANT

VERSUS

REPUBLIC……………………………………………………….......RESPONDENT

JUDGMENT

The Appellant, Shehla Sultana was charged with the offence of trafficking in narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4of 1994. The particulars of the offence were that on the 28th day of January 2010 at Jomo Kenyatta International Airport in Nairobi within Nairobi Area, the Appellant trafficked by conveying 11. 054 kilogrammes in narcotic drugs namely heroin with an estimated market value of Kshs. 11,054,000/= in contravention of the provision of the said Act. When the Appellant was arraigned before the trial magistrate's court, she pleaded not guilty to the charge. After full trial, she was convicted as charged and sentenced to pay a fine of Kshs.33,162,000/- or in default serve one (1) year imprisonment. She was in addition sentenced to serve fifteen (15) years imprisonment. She was aggrieved by her conviction and sentence and duly filed an appeal to this court.

In her petition of appeal, the Appellant raised several grounds of appeal challenging her conviction and sentence. She was aggrieved that she had been convicted yet the prosecution had not proved its case to the required standard of proof beyond any reasonable doubt. She was of the opinion that her defence had not been considered before she was convicted. She faulted the trial magistrate for relying on extraneous facts which had not been adduced by any prosecution witnesses to convict her. She further faulted the trial magistrate for relying on the prosecution’s inconsistent and contradictory evidence to convict her. She contended that at the time of her arrest, she was not provided with an interpreter. She complained that her rights under the Constitution dealing with the rights of arrested persons were not complied with rendering all pre-trial processes unlawful. In the premises therefore, the Appellant urged the court to allow the appeal, quash her conviction and set aside the sentences that were imposed on her.

At the hearing of the appeal, the Appellant presented to court written submission in support of her appeal. Mr. Sumba, learned counsel for the Appellant further made an oral submission on behalf of the Appellant. He reiterated the contents of the Appellants petition of appeal. It was Mr. Sumba's submission that the fundamental rights of the Appellant enshrined under Articles 49 and51(1)of theConstitutionwere infringed when the Appellant was arrested. He stated that no attempts were made to inform the Appellant of the reasons for her arrest given that there existed a language barrier between the Appellant and the arresting officers. It was also submitted on behalf of the Appellant that the requirements of Section 74(a) of the Narcotic Drugs Act was not complied with given that the Appellant was not represented upon seizure of the alleged narcotic drugs. In support of his assertion, learned counsel for the Appellant relied on the case of Albanus Mwasia Mutua -vs- Republic Criminal [2006] eKLR. According to counsel for the Appellant, the Appellant's right to a fair trial under Article 25of the Constitutionwas also compromised for reason that the Appellant was forced to execute documents which she did not understand. He submitted that the prosecution failed to establish its case against the Appellant. In particular, he observed that the prosecution witnesses gave contradictory evidence as to the amount of e allegedly recovered from the Appellant. Counsel for the Appellant further pointed out that the photographs produced into evidence by the prosecution were not clear for the trial magistrate to ascertain the actual weight of the said drugs.

On her part, Ms. Nyauncho for the State opposed the appeal. She submitted that the prosecution established its case to the required standard of proof beyond any reasonable doubt. In addressing the issue of language barrier, she submitted that the Appellant was not prejudiced in any way. According to Ms. Nyauncho, the recovery procedure did not require any conversation with the Appellant. She submitted that all statutory requirements were complied with in dealing with the Appellant. She therefore urged the court to dismiss the Appellant's appeal.

What was the prosecution's case before the trial court?On 28th January 2010 at around 2. 00 pm, the Appellant, a Pakistani national, holder of Passport No.AS 57710911 arrived at Jomo Kenyatta International Airport on a flight from Doha, Qatar. The Appellant's passport, fight ticket and boarding pass were produced as Prosecution's Exhibits Nos. 1, 40 and 41. When she disembarked from the plane, the Appellant was carrying a suitcase, grey in colour bearing a tag serial number QR 766405. The suitcase and tag were produced in evidence as Prosecution's Exhibits Nos. 2 & 3. She also carried a black handbag. At the baggage hall, the Appellant was intercepted by PW1 Police Constable Mary Mugi and PW2 Police Constable David Loisenger of the CID Anti-Narcotics Unit for a routine search. They led her to their office within the airport where they conducted a search on her. The black handbag was found to contain the Appellant’s personal effects. Nothing incriminating was found in the bag. When the Appellant was asked to open the suitcase, they found clothes inside (Prosecution's Exhibits Nos. 4-37). After removing the clothes, they found that the suitcase was unusually heavy. They used a knife to cut the suitcase on one side. They discovered a package which was white in colour at the bottom of the suitcase. The package was produced into evidence as Prosecution's Exhibit No. 38. They then slashed the top part of the suit case and discovered a second white package which was produced as Prosecution's Exhibit No. 39.

A report on the incident was made to PW5 Mary Jepkorir who is the Deputy Officer in-charge of the CID Anti-Narcotics Unit at the airport. PW5 called in PW3 Simon Nandi Sunguti, an analyst at the government chemist to analyze the contents of the packages. Prosecution's Exhibit No. 38 was weighed and was found to weigh 5. 127 Kilogrammes. Prosecution's Exhibit No. 39 weighed 5. 927 Kilogrammes. A certificate of weight was produced as Prosecution's Exhibit No. 42. PW3 then obtained two samples of ten (10) grammes each from both packages for analysis. A certificate of sampling together with the samples was produced as Prosecution's Exhibits Nos. 43, 44 and 45. The samples tested positive for presence of heroine. PW3 prepared a report which was produced as Prosecution's Exhibit No. 47. PW4 Corporal Virginia Wanjiku of the Scene of Crime Unit was also called to take photographs of the scene. Her report was produced as Prosecution's Exhibits Nos. 48 (a)- (w) and 49. The evidence of PW7 Judith Odhiambo was that in terms of Gazette Notice No. 3669, she valued 1. 154 Kilogrammes of heroin at Kshs.11,054,000. A copy of the Gazette Notice and valuation report were produced into evidence as Prosecution's Exhibits Nos. 59 and 60. PW6 Stephen Eyatta was assigned to investigate the case. After concluding his investigation, he reached the conclusion that indeed a case had been made for the Appellant to be charged with the offence for which she was convicted.

When the Appellant was put on her defence, she denied any knowledge nor involvement in the drug trafficking. She told the court that when she arrived in Nairobi on the material day, she was asked to fill some forms. She testified that she left her luggage and went to fill the forms. After filling the forms she was escorted to a room to wait for her luggage. She stated that when her luggage finally arrived, it had been opened. She told the court that she had clothes, sweets and groundnuts in her suitcase. The Appellant recalled that people later came into the room and searched her suit case. They also took photographs of her suitcase. She testified that she did not know what was going on as they were communicating in a language that she did not understand. She told the court that she was made to thump print some documents and later taken to the cells.

This being a first appeal, it is the duty of this court to reconsider and to re-evaluate the evidence adduced by prosecution witnesses and by the defence before the trial court so as to arrive at its independent determination whether or not to uphold the conviction of the Appellant. In doing so, this court is mindful that it never saw nor heard the witnesses as they testified and therefore cannot give an opinion as regards the demeanor of the said witnesses(See Okeno -vs- Republic (1972) EA 32). In the present appeal, the issue for determination by the court is whether the prosecution established its case for this court to convict the Appellant on the charge of trafficking in narcotic drugs to the required standard of proof beyond any reasonable doubt.

The Appellant challenged her conviction on basically four (4) grounds: the alleged breach of the Appellant’s fundamental rights, the failure by the State to accord the Appellant an interpreter at the time of her arrest, the alleged inadequacy of the evidence adduced against the Appellant and finally, the alleged use of extraneous factors to convict the Appellant. On re-evaluation of the evidence adduced by the prosecution and the defence offered by the Appellant, this court formed the opinion that indeed the prosecution did establish to the required standard of proof that the suitcase where the heroin was found belonged to the Appellant. According to the prosecution’s evidence, the Appellant alighted from a flight from Doha on 28th January 2010 at about 2. 00 p.m. She had a Passport. She also had airticket and a boarding pass which had a tag that was matched with the suitcase. When the Appellant was stopped by the police, she identified the suitcase as hers.

The suitcase was opened in her presence. It was found to contain substances which on analysis were established to be heroin. The heroin was hidden in false compartments at the top and the bottom of the suitcase. The items were photographed. The heroin was produced as evidence during trial. In her testimony, the Appellant denied owning the suitcase. In fact she stated that she was not aware what was going on on account of the fact that she did not understand the language the police used to interrogate her. This court holds that the fact that the Appellant did not understand the language that the police used to interrogate her at the time of her arrest did not excuse her from criminal liability once she instructed counsel to act on her behalf.

This court holds that the claim by the Appellant that the suitcase did not belong to her was not supported by evidence. The tag on her airticket matched the tag on the suitcase. The clothes found in the suitcase belonged to Appellant. She cannot deny that she was not aware of the existence of the false top and bottom in the suitcase in which the heroin was hidden. This court further holds that the prosecution did establish a direct connection between the Appellant and the suitcase. The Appellant was present when the suitcase was opened. This court is of the view that, being an international traveller, the Appellant was aware that, or ought to have been aware that her travel documents and luggage would be subjected to searches in various airports that she passed through. This court therefore holds that the prosecution did prove, to the required standard of proof beyond any reasonable doubt that indeed the Appellant was found in possession of more than 11. 054 Kilogrammes of heroin. This amount of heroin was obviously being trafficked. The court finds no merit with the Appellant’s assertion that the prosecution had not connected her with the suitcase where the heroin was found.

As regard the alleged breach of the Appellant’s constitutional rights, this court finds no merit with the same. The Appellant was arrested on 28th January 2010 and was arraigned before the court on 29th January 2010. This was within 24 hours after her arrest. The Appellant was represented by counsel when she was arraigned before court. During her trial, she was represented by counsel. On the date of her first hearing, when plea was taken, an interpreter was provided by the court. The plea of not guilty was entered. The Appellant participated in the trial by cross-examining the prosecution witnesses. This court cannot discern any breach of the Appellant’s constitutional right to fair trial. That ground of appeal similarly too has no merit and is dismissed.

On sentence, this court has no reason to interfere with the sentence meted on the Appellant by the trial court. The sentence was legal. The fine was legal. In the premises therefore, the appeal against conviction and sentence lacks merit and is hereby dismissed. The conviction and sentence of the trial court is upheld. It is so ordered.

DATED AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2015

L. KIMARU

JUDGE