[2013] KEHC 3325 (KLR)
The court found that the prosecution failed to prove the value of the narcotic drugs as required under Section 4(a) of the Act, as there was no evidence on record to show how the value stated in the charge was ascertained. Furthermore, the court held that the omission to produce the samples analyzed by the...
Source-derived case information.
- Citation
- [2013] KEHC 3325 (KLR)
- Parties
- Appellant: Thomas Onyango Opondo; Appellant: John Kiprotich Kwambai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 206& 207 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- GO Shikwe
- Legal Topics
- Narcotic Drugs Trafficking, Evidence Handling, Burden of Proof, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Onyango Opondo
Appellant
John Kiprotich Kwambai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the value of the narcotic drugs as required under Section 4(a) of the Narcotics Drugs and Psychotropic Substances Control Act.
- 2 Whether the prosecution established a proper evidentiary link between the seized exhibits and the samples analyzed by the Government Chemist.
- 3 Whether the omission to produce the samples in court was fatal to the prosecution's case.
Ratio Decidendi
The court found that the prosecution failed to prove the value of the narcotic drugs as required under Section 4(a) of the Act, as there was no evidence on record to show how the value stated in the charge was ascertained. Furthermore, the court held that the omission to produce the samples analyzed by the Government Chemist in court, and the lack of a proper evidentiary link between the seized exhibits and the samples, was fatal to the prosecution's case. The contradictions in the evidence of the prosecution witnesses further undermined the integrity of the case. As a result, the court concluded that the conviction could not stand and allowed the appeal, quashing the conviction and...
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction of the two appellants is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 206& 207 of 2012 [if gte mso 9]><xml>
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1. THOMAS ONYANGO OPONDO ………………..1ST APPELLANT
2. JOHN KIPROTICH KWAMBAI ……………….…2ND APPELLANT
- Versus -
REPUBLIC ………………………..………………….… RESPONDENT
JUDGMENT
The two Appellants were convicted and sentenced to a fine of Kshs. 1 million in default one year imprisonment and in addition to a term of 15 years each for the offence of trafficking in Narcotic Drugs contrary to Section 4(a) of the Narcotics Drugs and Psychotropic Substances Control Act No. 4 of 1994.
The particulars of the charge are that-
“On the 4th day of November 2010 at Mariakani Township in Kilifi District within the Coast Province, jointly, with others not before the Court, trafficked in Narcotic Drugs by transporting eight sacks of Cannabis Sativa weighing 224kgs with a market value of Kshs. 448,000/- in a motor vehicle Registration number KAX 043G Toyota Corolla White in colour in contravention of the said Act.”
I have perused the record of proceedings and nowhere is it shown that the monetary value of the exhibits was ascertained. The charge reads and indicates a value of Kshs. 448,000/-. It’s not shown where that value was taken from.
In HCCRA No. 467 of 2010 Emmanuel Kwaku Ababio –Vs- Republic Ojwang, J was of the view which I ascribe to that-
“The penal scheme prescribed under section 4(a) of the said Act is predicated on the value of the Narcotic Drugs recovered, without reliable evidence of the price – assessor for the drug recovered is vital element in the prescribed penalty cannot be dispensed for the criminal law, by its standard principle and procedure, lays the onus of proof on the prosecution.”
This present appeal is in all fours with the one my brother Judge was confronted with.
Secondly, on the issue of the exhibits, it is conceded by the State that the evidence of PW1 and PW4 was in variance and contradictory in that PW1 had told the trial Court that he had sampled the exhibits and took them to the Government Chemist for analysis.
The Government Analyst did produce a report showing the substances to be Cannabis Sativa. But the samples were not produced in Court. That omission is said to be fatal to the prosecution case.
I am in agreement with the States concession in that no proper link was established between the eight sacks of plant material and the samples that were allegedly taken for examination and analysis. That omission was fatal to the prosecution case. I find the appeal has merit. The conviction of the two Appellants is quashed and the sentence set aside.
They are set at liberty unless otherwise lawfully held.
Judgement read and delivered in open Court this 20th day of May, 2013.
M. MUYA
JUDGE
In the presence of:-
State Counsel - absent
Mr. Magolo counsel for the Appellant - present
Court clerk – Mr. Musundi
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