[2023] KEHC 23207 (KLR)

Wakhisi v Republic (Criminal Appeal E013 of 2022) [2023] KEHC 23207 (KLR) (6 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23207 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal Appeal E013 of 2022

DO Ogembo, J

October 6, 2023

Between

Rosemary Wasonga Wakhisi

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence arising from criminal case No. 2444 of 2013 in the Chief Magistrate’s court at Kibera, Hon. Joyce Gandani, CM, and judgment delivered on 19/11/2019 and sentence on 2/12/2019)

Judgment

1Rosemary Wasonga Wakhisi, the appellant herein was charged before the lower court with the offence of trafficking in Narcotic Drugs and psychotropic substances (control Act) Act, No 4 of 1994. that on 16/7/2013, at Jomo Kenyatta International Airport within Nairobi County with others not before the court, she trafficked by conveying 6,181. 2 grams of a Narcotic drug namely Heroin concealed in the false inner bottom and sides of black suitcase with a market value of Kshs. 15,453,00/= in contravention of the provision of the said Act.

2Upon entering a plea of Not Guilty the case of the appellant went through full trial. she was eventually convicted and on 2/12/2019, she was sentenced to a fine of Kshs. I Million and in default to serve 1 year imprisonment term. In addition, she was sentenced to serve 10 years imprisonment. This is the conviction and sentence she has now appealed against. In the undated appeal filed herein, the appellant has raised the following grounds of appeal. 1. THAT the trial magistrate erred in matters of law and fact by failing to note that there was insufficient evidence to prove the charge against the appellant.

2. THAT the court erred in law and facts by failing to find that the prosecution did not prove the case beyond reasonable doubt.

3. THAT the magistrate erred infact and in law in convicting the appellant when the mandatory provisions of the law were not followed.

4. THAT the magistrate erred in law and fact by convicting the appellant in the face of obvious and material contradictions, inconsistencies and irregularities.

5. THAT the magistrate erred in law and facts in convicting the appellant while relying on her conjectures and that the sentence was manifestly excessive considering all the circumstances.

6. THAT the trial magistrate erred in law and fact in failing to appreciate that the evidence tendered by the prosecution was not cogent enough to convict the appellant.

7. THAT the learned judge failed to appreciate the appellants’ plausible defence and thus flouting article 25 (c) and 27 (I).

8. THAT the trial court failed in matters of law and fact in shifting the burden of proof to the appellant.

9. THAT the learned trial magistrate erred in matters of fact in finding that the appellant was entering the country.

10. THAT the trial magistrate failed to avail the crucial witnesses to adduce evidence.

11. THAT the sentence meted on the appellant by the trial court was harsh and excessive in the circumstances.

3The appellant prays that this appeal be allowed in its entirety. the prosecution side opposes this appeal. This appeal was canvassed by way of written submissions. Both sides duly complied and filed their set of submissions.

4On the side of the appellant, while submitting that the duty to prove the guilt of an accused person lies on the prosecution (Woolmington-Vs- DPP (1935 AC 462), the prosecution herein shifted that burden to the appellant. Secondly, that the prosecution failed to produce material exhibits including the black suitcase, exhibit register, the passport of appellant and movement register of the exhibits. That the assertion that the documents got burnt in the fire at the airport was never proved. she urged that an inference be made in her favour.

5It was further submitted that the prosecution failed to prove that the offending bag belonged to the appellant since none of the luggage tags bore the name of the appellant. She maintained that this was a case of selective evidence to pin down the appellant (Ann Butyi Ciza-Vs- R (2017) eKLR.

6The appellant further submitted that the prosecution failed to secure evidence or testimonies from a key witness, the arresting officer, PC Mule to shed light on the arrest of appellant, the search and retrieval of the bag. He relied on Ityoyi-Vs- R (2008) eKLR, on the effects of relying on the evidence of a single witness. Further, the appellant submitted that the prosecution gave contradictory evidence. she cited the evidence of PW 6, on the extent of the fire at the airport, and that there was no evidence to prove that the exhibits were saved. further that the appellant side were not given access to the photos produced and that the photos should have been excluded as exhibits.

7The appellant also challenged the prosecution’s evidence on the weight of the exhibit. that same was placed at 6181. 2 gramms while PW 2, the analyst gave evidence that heroin constituted only 40% of the seized substance. that the evidence on record is therefore not in tendem with the particulars of the offence as stated in the charge sheet. Further that there are errors on record as the trial magistrate recorded that appellant was entering the country while in fact she was flying out of the country.

8Appellant also took issue with the fact that the seizure notice which was allegedly not served, and that no chain of custody was ever made. That same were interfered with. And further that the court failed to consider the defence raised by the appellant. And lastly, that that the sentence meted out was harsh and excessive in view of the mitigation raised by the appellant.

9From the side of the prosecution, it was submitted that the issues are only 2. i.Whether the prosecution proved the case against the appellant beyond any reasonable doubt as required by law.ii.Whether sentence imposed was harsh and excessive.

10It was submitted that the evidence of the prosecution witnesses specified the conduct of the appellant that constituted trafficking by conveying. And that the same proved that the black suitcase belong to the appellant. That the appellant even signed the inventory, the notice of seizure, certificate of weighing, certificate of sampling, record of seized substance and notice of intention to tender records in evidence. That, the appellant represented at the trial, did not deny signing the said documents.

11Counsel further submitted that the samples were properly weighed by an authorized officer, and that the defence raised by the appellant lacked any merit.

12On the issue of sentence, counsel submitted that the same was proper though extremely lenient considering the market value of the recovered narcotic drugs. The court was urged to dismiss this appeal. This court being a 1st appellate court is guided by the decision in Okeno -Vs- Republic (1972) East Africa 32 and Pandaya – VS- R (1975 EA 336, that it must reevaluate the evidence tendered before the trial court and to come to its own logical conclusion by taking into account the fact that it did not have the advantage of being and hearing the witnesses and their evidence and or demeanor. It is therefore imperative that this court must consider all that evidence as was tendered before the trial court.

13From the record of the proceedings of the lower court, the case of the prosecution commenced with the evidence of PW 1 Cpl. Salome Olubui of JKIA anti-narcotics police unit. Her evidence was that on 16/7/2013, she proceeded to the office where she joined Cpl. Agnes who was with a suspect arrested while on transit to Lome, Togo and was being suspected of trafficking in narcotic drugs. He found the suspect with Cpl. Agnes Mwema, Cpl. Geoffrey Kipkirui and the appellant. That Cpl. Agnes on requesting the appellant to open the suitcase, did a search and recovered everything leaving the suitcase which still had an abnormal weight. on checking there was a false bottom concealing a substance suspected to be narcotic drugs. Also on both sides.

14The witness identified the recovered substance in court but added that the suit case got burnt in a fire incident at JKIA. Weighing and sampling were also done in her presence. The 2nd witness was Cpl. Agnes Mwema an anti-narcotics unit officer at JKIA. Her evidence was that on 16/7/2013 at Gate 7, she stopped a female passenger of Ethiopian Airlines Flight ET 802 to Addis Ababa. That on being requested, the passenger gave out a Kenya passport in the name Rosemary Wasonga Wakhisi, and air ticket no. 07141485855958, 2 boarding passes and claim tag with the same name. Also a Kenya Airways Boarding card and vaccination certificate. That on suspecting the subject, the witness, in company of the appellant, gave out the claim tag for her luggage to be off loaded. A black suitcase was brought by Kenya airways staff and the appellant identified the same as hers. The suit case had a tag number corresponding with the claim tag. once in the office she searched the appellant. Nothing was recovered from her body. A search in the suitcase revealed an abnormal weight. In the false bottom of the suitcase, she recovered 3 packages of narcotic. drugs. An inventory of the recovered items was made. This witness also confirmed that the suitcase was later burnt in the fire incident. And that the appellant both signed and thumb printed on the inventory.

15Simon Nandi Sunguti was PW 3. He analysed the exhibits recovered at the Government Chemist in Nairobi on 16/7/2013. He determined that the 3 sachets contained heroin, a narcotic drug under the Act. He duly made a report of his findings which he produced in court (Exhibit- 16). And PW 4 PC John Ngeno, a scenes of crimes officer, took photographs of the scene of the recovery of the narcotic drugs. He produced the photographs and the certificate in court as exhibits.

16Chief Inspector Joshua Okalo was PW 6. His testimony was that on 16/7/2013 at about 2. 00 p.m. at the JKIA, he had valued the recovered narcotic drugs. He valued the 6,181. 2 grammes of heroin at Ksh. 2,500/= per gramme, making a total value of Kshs. 15,453,000/=. He duly produced his report (Exhibit -21).

17PW 6 Ruth Muinde, also a former police officer at JKIA, recalled that on 16/7/2013, testified that upon the arrest of the appellant, she took into custody the exhibits. That the scene was photographed and he exhibits were weighed by herself. She prepared a certificate of weighing which was signed by the appellant (Exhibit-19) and the record of seized exhibits (Exhibit – 23) And PW 7 Chief Inspector Jane Njagi, testified that on 16/7/2013 at about 6. 00 a.m she found Cpl. Ayuma, Cpl. Muema and the appellant in the office at JKIA. She called in the crime scenes support staff and also contacted the Government Analyst. In court she produced the prosecution exhibits. She later had the appellant charged in court. This witness also confirmed that whereas some of the exhibits got burnt in the fire, the ones that were in a safe were only slightly burnt. And lastly, PW 8, David Kariuki Nguthi of State Department of Public works, investigated the fire at the JKIA. He produced the investigations report (Exhibit – 28). When the appellant was put to her own defence, she opted to give an unsworn defence. Her testimony was that she is a business woman. That on 16/7/2013 she was to travel to Togo. She had a handbag and hand luggage. That at the immigration, she was grilled on why she was travelling to Togo and asked to stand aside, next to an Indian lady and another African. That after about 20 minutes, 2 police officers lead them to a nearby office (road) where they were searched as well as their bags. She was then led to Airport Police Station and later taken to court over drug trafficking. She denied ever having a black bag, and that in any case, the bag was never produced as an exhibit.

18This basically is the evidence. The appellant faced a charge of trafficking in Narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and psychotropic substances (control) Act, No. 4 of 1994. The said section provides.

19Any person who traffics in any narcotic drug of 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 greater psychotropic substance, whichever is the greater and in addition to imprisonment for life.”

20As to what constitutes trafficking, Section 2 of the Act defines the same as;trafficking means the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug 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…..

21As already seen above, the appellant was charged with trafficking by conveying, which rightly fits the definition of trafficking under the act. The prosecution’s case herein was simple and direct that on the material date and time, at the JKIA, PW 2 corporal. Agnes Muema suspecting the appellant, stopped the appellant who was set to board Ethiopian Airlines Flight ET 802 to Addis Ababa. That on being asked, appellant gave out her Rosemary Wasonga Wakhisi, and air ticket No. 07141485855958, 2 boarding passes, and a luggage claim tag bearing the same names among other documents. That on being asked to have her luggage off loaded and using her luggage claim tag, a black suitcase was brought. The same had a corresponding claim tag and the appellant identified the same as her luggage. That a search of the suitcase revealed an abnormal weigh. On further search the narcotic drugs in satchets were recovered from the false bottom and sides of the black suitcase. An inventory was made of the recovered narcotic drugs and duly signed by the appellant and the arresting officers present. She even thumb printed on the same PW 1 Cpl. Salome Olubui was a witness to this incident and corroborated the evidence of PW 2, PW 3 Simon Nandi Sunguti, analysed the recovered exhibits and determined the same to be heroin, a narcotic drug under the act. PW 4 PC John Ngeno, a scenes of crimes officer, took photographs of the recovered narcotic drugs, while PW 5 Chief Inspector Joshua Okalo weighed the recovered narcotic drugs at 6,181. 2 grammes. He also valued the same at Kshs. 15,453,000/=. PW 6 Ruth Muinde, prepared the certificate of weighing and the record of seized exhibits, both of which the appellant signed.

22During the course of the prosecution’s case, the prosecution witnesses testified that a fire had erupted at the JKIA, consuming some of the exhibits, particularly the recovered black suitcase. Some of the exhibits that had been kept in safe were however, recovered. PW 8 David Kariuki Nguthi, assessed the damage and made a report of the same which he produced as an exhibit. From the evidence of the prosecution witnesses, it is clear that the prosecution’s case was well corroborated in several material respects. That the appellant was on transit to do via Addis Ababa. That she held a Kenyan passport in her name Rosemary Wasonga Wakhisi; That on arrest, she had both a Boarding pass and luggage claim cards in her name. that her black suit case bore the same details as her luggage claim card. She in fact identified the bag as her bag. That the search in the bag and the recovery of the narcotic drugs was done in her presence. That she duly signed the inventory of the recovered exhibits and the notice of seizure. For the inventory, the appellant, even went further for thumb print on the same. The exhibits were accordingly examined and determined to be heroin, a narcotic drug under the Act. The same were also accordingly weighed at 6,181. 2 grammes and valued at Kshs. 15, 453,000/=.

23With the evidence given by the prosecution witnesses, this court is convinced that the appellant was arrested on the material date while trafficking in the narcotic drugs by conveying the same.

24The appellant in her defence stated that she was indeed in transit t Togo. She denied ever having the black bag, arguing that the bag was never produced in evidence. With respect, I do not find any merit in the defence of the appellant in view of the well corroborated evidence of the prosecution. It is noteworthy that the appellant offered no defence at all to the specific evidence given by the prosecution, particularly.i.That her passport boarding pass and luggage claim tag, bore the same name as the tag on the black suit case.ii.That she duly signed the inventory of the recovered items and even thumb printed on same. That she also duly signed the notice of seizure. And there is no evidence on record to suggest that she was co-erced or was put under any form of duress to append her signatures on the documents.

25As to the fire consuming part of the JKIA, this is public knowledge. PW 8 also presented a comprehensive report on the same. In the circumstances, I find it safe to believe the evidence of the prosecution witnesses that the black suit case recovered from the appellant and belonging to the appellant was consumed by the fire.

26The defence of the appellant clearly lacks in any merit and I dismiss the same.

27In all, I do not find any material inconsistency or contradiction in the case of the prosecution. Neither do I find any irregularity on the manner in which the prosecution exhibits were handled in view of the fact that Section 74A has been held to be not mandatory i.e where practicable (Moses Banda Daniel -vs- R (2015) eKLR.

28On the issue of sentence, I have considered the serious nature of the offence charged, the volume and size of the seized narcotic drugs, and the sentence provided for in law (as already seen above. I am convinced that the sentence imposed by the trial court of a fine of Kshs. 1 million or in default to serve 1 year imprisonment, And in addition, 10 years imprisonment, is legal and proper. I have no reason to interfere with the same.

29In criminal cases, it is incumbent upon the prosecution to prove the guilt of the accused beyond any reasonable doubt. In this case I am convinced that the prosecution discharge this burden. The appeal of the appellant against the conviction and sentence therefore lacks merit and fails. I accordingly dismiss the appeal of the appellant, Rosemary Wasonga Wakhisi, herein. The appellant is ordered to serve out her sentence as ordered by the trial court. It is so ordered.

JUDGMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH DAY OF JUNE 2023. OGEMBO D. O. JJUDGE6/6/2023COURTJudgment read out in court in presence of Hadija: Court Assistant, the Appellant (Langata Women) and Ms. Ntabo for the state.OGEMBO D. O. JJUDGE6/6/2023