[2017] KEHC 3702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL 156 OF 2016

ZAKAYO OBARI KANGA…………………………………..…….APPELLANT

VERSUS

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

(An appeal arising out of the judgment and sentence of Hon. N. Ruguru Ag. SRM in CriminalCaseNo. 3076 of 2012 delivered on 30th October 2013 at the Chief Magistrate’s Court at Mombasa )

JUDGMENT

1. Zakayo Obari Kanga (hereinafter “the Appellant”), was convicted of the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act of 1994. The particulars of the offence were that on the 24th October 2012 at about 0600hrs at Barsheba area in Kisauni District within Coast Province, the Appellant trafficked in narcotic drugs by storing 44 rolls of cannabis with a market value of Kshs 4,400/= in contravention of the said Act.

2. The Appellant was first arraigned in the trial court on 25th October 2012, when he pleaded not guilty to the charge. He was tried, convicted of the offence, and sentenced to serve ten (10) years imprisonment.

3. The Appellant, being aggrieved by the judgment of the trial magistrate, preferred this appeal, and the grounds are in Amended Grounds of Appeal he availed to the Court. The grounds of appeal are that there was variance between the charge particulars and the evidence on record contrary to section 134 of the Criminal Procedure Code; the procedure to be followed when suspected drugs are seized was not followed in that he was charged and arraigned in Court before the report from the government analyst was produced; the informer was not summoned to come and testify before court; the policemen who searched his house had no search warrant; all the prosecution witnesses were policemen; the evidence as to the place of recovery of the alleged seized bhang was contradictory; and that his defence statement remained unshaken.

4. The Appellant also availed written submissions during the hearing of his appeal, wherein he reiterated the above grounds and relied on the decisions in in support.

5. Ms. Ogweno, the learned prosecution Counsel, made oral submissions during the hearing held on 17th July 2017. She conceded the appeal on the grounds that firstly, there was no proof of the value of the narcotic drugs that were recovered, which is a mandatory requirement under the Narcotic Drugs and Psychotropic Substances Control Act of 1994. Secondly, that the number of rolls examined were in contradiction to those stated in the charge sheet, whereby PW4 testified that he received and examined 10 rolls of bhang, while PW1, PW2 and PW3 testified that they recovered 44 rolls of bhang. She submitted that the doubt created should be resolved in favour of the Appellant.

6. As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic[1973] EA 32).

7. I have considered the grounds of appeal, submissions and evidence given in the trial court, and find that they raise two issues. These are firstly, whether the charge was defective; and secondly whether the correct procedure was used during the hearing pursuant to which the Appellant was convicted of the offence of trafficking in narcotic drugs.

8. On the first issue, it was conceded that the charge was defective as it was not supported by the evidence called by the prosecution. Indeed, upon perusal of the trial Court record, the Court notes that PW1 (Cpl Benson Onsongo), PW2 (PC Andrew Akollo) and PW3 (PC Boniface Wambua), who searched the Appellant’s house and arrested the Appellant testified that they found 44 rolls of bhang in the said house.

9. However, PW4, Mr. John Njenga, who was a government analyst attached at the Government Chemist, testified that 10 rolls of dry plant material were brought to him as exhibits by PW3, which he examined and found to be cannabis. He produced his report and the exhibit memo as exhibits in the trial Court to support his evidence.

10. This Court therefore finds that there were defects in the charge sheet in relation to the particulars of the offence as regards the quantity of narcotic drugs stored by, and recovered from the Appellant. The Court of Appeal in Yongo vs Republic [1983] KLR, 319did hold that a charge that is not disclosed by evidence is defective and stated as follows in this regard:

“In our opinion a charge is defective under Section 214(1) of the Criminal Procedure Code where:

(a) it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or

(b) it does not, for such reasons, accord with the evidence given at the trial; or

(c) it gives a misdescription of the alleged offence in its particulars.”

11. In the present appeal, there was contradictory evidence as to the quantity of narcotic drugs recovered from the Appellant, with PW1 ,PW2, and PW3 testifying that the quantity was 44 rolls of dry plant material, while PW4 stated that he received 10 rolls of dry plant material from PW3. In addition, the said 44 rolls are recorded as having been marked for identification by PW1 and PW3, but there was no record of the same being produced as exhibits in the trial Court.

12. Section 74A of the Narcotic Drugs and Psychotropic Substances Control Act of 1994 in this regard provides an elaborate procedure to be adopted upon seizure of narcotic drugs as follows:

“(1)Where any narcotic drug or psychotropic substance has been seized and is to be used in evidence, the Commissioner of Police and the Director of Medical Services or a police or a medical officer respectively authorized in writing by either of them for the purposes of this Act (herein referred to as “the authorized officers”) shall, in the presence of, where practicable-

(a) the person intended to be charged in relation to the drugs (in this section referred to as “the accused person”);

(b) a designated analyst;

(c) the advocate (if any) representing the accused person; and

(d) the analyst, if any, appointed by the accused person (in this section referred to as “the other analyst”), weigh the whole amount seized, and thereafter the designated analyst shall take and weigh one or more samples of such narcotic drug or psychotropic substance and take away such sample or samples for the purpose of analysing and identifying the same.”

13. After identification and analysis of the recovered drugs, only the sample is to be returned to the authorized officer together with the analyst’s certificate for production at the trial. Thereafter, arrangements are made with the trial Magistrate for destruction of the rest of the drugs in the presence of the Magistrate, the accused person, where practicable, and his advocate, if any, and thereafter the Magistrate is required to sign a certificate signifying the fact of such destruction.

14. This Court notes that no said sample, or the analyst’s and Magistrate’s certificates were produced in the trial Court as evidence of the nature and quantity of the dry plant material recovered from the Appellant, and of the fact of its destruction.

15. I accordingly quash the conviction of the Appellant for the charge of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act of 1994 for the foregoing reasons. I also set aside the sentence of ten years imprisonment imposed upon the Appellant for this conviction, and order that he be and is hereby set at liberty forthwith unless otherwise lawfully held.

16. It is so ordered.

DATED AND SIGNED AT MOMBASA THIS 21ST DAY OF JULY 2017.

P. NYAMWEYA

JUDGE