1. The learned Trial Chief Magistrate erred in law and fact by convicting the Appellant on a charge which had not been proved beyond reasonable doubt as required by law.
2. The learned Trial Chief Magistrate erred in law and fact ignoring prosecution evidence which was in the Appellant’s favor and materially contradicted the prosecution case.
3. The learned Trial Chief Magistrate erred in law and fact by finding the Appellant had a luggage tag labelled No.41 without any evidence of such recovery upon search thereby convicting the Appellant on findings not supported by evidence.
4. The learned Trial Chief Magistrate erred in fact and law by substituting "prove beyond reasonable doubt" (which is based on evidence) with" intelligence" which is not evidenced and ended up convicting the Appellant on this amorphous evidence against trite law that a conviction can only be premised on "proof beyond ant reasonable doubt"
5. The learned Trial Chief Magistrate erred in law and fact by failing to consider that the luggage was marked as originating from Nairobi and destined for Mombasa thereby contradicting the assertion that it originated from Kampala and was destined for Nairobi which contradiction ought to have been resolved in favor of the Appellant.
6. The learned Trial Chief Magistrate erred in fact and law by relying on the evidence of a bus driver who was not driving the bus at the material time and distance and by failing to consider that the driver who had control of the bus at the material time and distance was not even disclosed.
7. The learned Trial Chief Magistrate erred in fact and law by admitting as a fact a lie that the Appellant carried her luggage from the bus in the face of clear evidence from the prosecution by the scenes of crime photographer No. 86634 P.C. Peterson Njue (PW3), that when the passengers were lined outside the bus all their luggage was in the luggage compartment and they photographed it and that it is the police who removed the luggage including the questioned box and took it to the office which makes the conviction erroneous.
8. The learned Trial Chief Magistrate erred in fact and law by admitting and relying wholesomely on contradictory prosecution evidence without question and dismissing the Appellant's defense in one sentence without giving any reasons.
9. The learned Trial Chief Magistrate erred in fact and law by ignoring the fact that the prosecution case did not establish with clarity what the narcotic substance was (whether heroin, cocaine or Methamphetamine) that was allegedly being trafficked.
10. The learned Trial Chief Magistrate erred in fact and law by admitting and relying on evidence obtained in contravention of the law in violation of the Appellant's Constitutional right to a fair trial enshrined in Article 50(4) of the Constitution of Kenya 2010, namely that the search alleged to have been done on the Appellant and the luggage were against the law and illegal.
11. The learned Trial Chief Magistrate erred in fact and law by imposing a sentence that was manifestly excessive, inhuman and in fact unlawful ignoring the provisions of the constitution of Kenya 2010 Article 50(2)(p) [Constitution] which entitles a first offender the least of sentences prescribed for an offence.
TRIAL COURT PROCEEDINGS
1. PW1 EVIDENCE ON 14/5/2019
PW1, Kiplimo Bore, stated that he was driver of Modern Coast Express for 12 years. He was plying Nairobi-Busia-Kampala-Kigali-Rwanda. On 18/8/2016, he drove motor vehicle Registration Modern 5 Uganda registration No, he left Uganda at 9 pm. At Kisumu he handed over the motor vehicle to a driver Mr. Augustine. They stopped at Nakuru for breakfast.
They proceeded with the journey. At Naivasha, they were stopped by Police Officers, 2 men in plain clothes told them to drive the motor vehicle to the police station. They drove to Naivasha Police station.
While at the station, all the passengers were ordered to take possession of their luggage. One of the passengers a lady was taken over by police officer as suspect to the office. Augustine and him were called in. They showed us the lady who had been arrested and they were informed that she was trafficking drugs.
He was shown different plastic brushes which contained the drugs. He was shown different brushes - plastic handle and cloth brush pink and purple in color. They were in brown box (carton) marked MFI-1 The box was in a back polythene bag marked MFI-2 53 cloth/brushes marked MFI-3
The officer opened the box of the brush and he saw brown substance concealed in the hollow part of the brush.
(Witness demonstrates) he then recorded his statement with the police. He had his driving permit in court. He also had badge No. 5318/29 marked MFI-4 in the name of Kiplimo Bore.
He had a chart showing motor vehicle bookings to any particular day. He had a chart for 18/8/16. On this day the bus was fully booked from Kigali-Bus. Travel Bus Chart marked – MFI-5 Attached to the chart is a manifest showing the bounded clearance. He had the manifest for 18/8/16 marked MFI-6 It was stamped at Busia Uganda and Busia Kenya.
The passenger Anne Achieng sat on seat No. 41. He also had a bus ticket issued on 18/8/16 from Kampala to Nairobi. He had a tag 1 showing the seat number and name- MFI-7 He recorded his statement. Accused 1 was known to him (identified).
2. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
In cross-examination PW1 stated that when he got to Naivasha the following day. He was the driver, not the conductor. He did not concern himself with passenger’s luggage and that tickets are issued in their offices and the tag was also issued at the booking office. He was not the one who issued the tag. All the luggage must be tagged. All travelers are issued with travel tickets. He was not present when the luggage was tagged.
The motor vehicle was full. According to the chart No. 12 was the co-driver’s seat. The bus has 2 drivers. He did not know who was seated on to seat No. 44. According to the chart, the bus was fully booked. Passenger No. 44 boarded the bus at Kisumu. He saw the luggage at the police station having been removed from the bus. The drivers were all called to the office.
3. CROSS-EXAMINATION BY MR. OUNDU FOR 2 ND ACCD
PW1 stated that he saw the bus at the police station office. He did not see the luggage bag removed from the bus referred to the rag in court does not bear the names and does not disclose the destination.
It only showed the seat No. He presented to court a computer- generated document.
4. PW2: ADULT SWORN STATE IN ENGLISH
No. 63487 Sgt Joseph Kipruto of DCI Headquarters, currently attached to Safaricom, previously ANU till April 2018,
He stated that on 19/8/2016, he got information that there was a person who was bringing in drugs from Kampala to Nairobi. I and PC Odhiambo left Nairobi early morning and drove to Naivasha. The information was that the suspect was
using PSV Modern Coast Bus Registration Modern 5; a customized Uganda number plate. They got to Naivasha at 9.30 am, they sought assistance of Traffic officer. The bus arrived shortly before 11 am. The motor vehicle was stopped by police officers. They were directed by the officers to the police station. On arrival, they asked all the passengers to alight and collect their luggage, and also present ID documents. As they alighted, they went through the documents. They already had the name of the suspect. Her name was Anne Achieng Anyanga. He waited for her to pick her luggage. She picked a carton wrapped in black polythene bag.
They escorted the suspect to the DCI office Naivasha a few metres from where the motor vehicle was parked. He informed her that her luggage would be searched as the lady officer did a body search.
The box carton contained several cloth brushes ( MFI- 3 ). They inspected each and every piece of the brushes; a substance was concealed in the hollow space on the handle. The handle had a cork. There were 53 brushes marked D1-D53 . Out of the 53, 52 had brownish substance suspected to be narcotic drugs.
(Exhibit polythene bag - sealed torn open in court). Witness demonstrates how the substance were concealed in the brush handles. Pellet like substance marked D1-D52- MFI 9. They arrested the suspect and interviewed her. She said she had been sent by another lady. P.C.Odhiambo prepared an Inventory as is D/D. He signed the inventory, PC Njue and the suspect. Inventory marked MFI-10
The passport was recovered from Accused 1 - A2333622. Anyanga Anne Achieng-marked as MFI- 11 . She also had a bus ticket from Modern Coast ( MFI 7 ). The carton had a tag, it had no name but labelled seat No. 41 ( MFI 8 ). They also were with Scenes of Crime officer. They photographed the motor vehicle. They took 135 photographs marked as MFI -135.
He issued Notice of Seizure to the Bus addressed to Managing Director - (M.C) registration Modern 5 marked as MFI-13 (a).
He also seized the carton and brushes and issued the Notice to Anne A. Anyanga marked as MFI-13 (b).
The Investigating officer confirmed with the investigations, I later learnt that the substance was analyzed and found to be Heroine. He got this from the Investigating Officer. Our preliminary test at the seizure, the substances had reached to show for that they were narcotics.
Mr Wanyanga for 1 st Accused person applied to be supplied with 135 photographs to study and prepare for the Defense & Mr
Oundu supported [colleague’s application] The Trial Court stood down the witness.
5. PW3 ADULT SWORN STATES IN ENGLISH
No. 86634 P.C. Peterson Njue, crime scene investigation officer. G/N 217/1/1/2013. He stated that on 19/8/2016, he was requested by one P.C Mugambi of ANU, DCI Headquarters to document a motor vehicle that they had intercepted along Nairobi Naivasha Highway at Total Petrol Station Junction.
He found the motor vehicle parked at Naivasha Police Station Yard. They said that motor vehicle was carrying suspected drug dealers. MODERN 5 - belonging to Modern Coast was the registration number. Their left side 2 nd compartment, there was a luggage. They opened the compartment. They were made luggage. One had a tag. Modern Coast travel customer NRB-MSA No. 41. The luggage was inside a black polythene paper which was removed and taken into the office so that it would be opened. Inside the polythene bag was a box with brooms, made of plastic handles and cotton. They were of pink and purple in color.
One pink broom handle was opened on either side, it was stuffed with powder in between the handle. They were wrapped (powder) using clear paper.
They also requested to do a preliminary test. One was heroin, cocaine and the 3 rd one was methamine. Then he took photographs of the 3 reagents and also chemicals, the 3 reagents after the testing. He also took photographs of the items in bus without passengers. In total he took 36 photographs MFI-14. He prepared a report in respect of the photographs, which were processed at DCI Headquarters. He also prepared and signed a certificate- MFI-15 . Photographs 14 i-xxiv & Certificate 15.
6. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW3 stated that at the time of investigation, he was based at Naivasha crime scene. He found the bus parked at Naivasha police station. All passengers were outside the bus.
Their luggage was still in the compartments. He found the luggage inside the bus compartment. He supervised the processing at DCI Headquarters. There is a photographic department at DCI Headquarters. He produced a work ticket where they produced the photographs for processing. His camera had an SD card. He had not produced the SD card. It was described in the certificate. He stated that the certificate could be produced if required, he could produce it before court. The photographs were transferred from his SD to CD for processing.
7. CROSS EXAMINED BY OUNDU FOR ACCUSED 2
PW3 stated that he arrived at the police station during the day. He could not recall the exact time. He found the luggage in the compartment. He did not see the police make enquiries.
8. RE-EXAMINATION BY PROS
The Investigating Officer told him that they had forwarded about the luggage. The photography was not stage managed.
9. PW4: ADULT SWORN STATE IN ENGLISH
No. 235249 CI Lilian Saka at DCI Headquarters as Crime Scene Investigator. She stated that on 26/8/2016 at about 1230 hours, while at DCI Headquarter, she was called to attend to a scene where suspected narcotic drugs had been found and taken to Government Chemist for analysis. Upon request by Investigating Officer, she took a total of 138 photographs. She was doing the weighing, sampling and analysis process. The photographs showed the exhibit brooms and samples collected marked D1 - D52 and each marked exhibit was weighed. She took exhibit of D1-D52 being weighed and also being sampled. The photographs were altered. This took place at the Government Chemist. The photographs were before court. They were 138 in number, MFI-16 as a bundle. She prepared a Certificate -MFI -17. MFI-16 & MFI -17 now produced as Exh 16 & 17
10. CROSS-EXAMINATION BY MR. OUNDU FOR ACCUSED 2
PW4 stated PC George Odhiambo, asked her to take photographs. His name appeared on her report. She found the substance at Government Chemist. The Investigating Officer and the suspect were present. The substance was in the possession of the Investigating Officer.
She signed documents for analysis. She could not recall the number of the documents signed. The suspect was also present. The Investigating officer showed her the suspect. She did not photograph the suspects. She was not told to take photographs of suspects.
11. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW 4 in cross-examination by Mr. Wanyanga stated that the brushes were marked D1-D53 . She took photographs of the brooms with the top part removed. Referred to photograph marked 21, there was a powdery substance from the top part of the broom. The substance was inside a polythene paper inside the broom. She was the one who opened the tops of the brooms. The polythene was inside the brooms. The 1 st Photograph showed the exhibits in a box which was not sealed.
12. PW 2 SGT KIPRUTO JOSEPH- RECALLED FOR CROSS EXAMINATION- SWORN STATED
CROSS EXAMINATION BY MR WANYANGA FOR 1 ST ACCUSED
He stated that he did not participate in taking photographs by Scenes of Crime. They had intelligence in regard to the identity of 1 st Accused. The source of Intelligence could not be disclosed to Court. He did not spot test in the presence of the Accused1.PC Odhiambo did the test in my presence. The test was done by trained Anti-narcotic Officer. He was also a trained ANU Officer.
Mr Odhiambo did the testing. Presumptive test would guide them whether the substance was a narcotic. He conducted the arrest and recovery. Photographs were taken by Officers from Naivasha.
13. CROSS EXAMINATION BY MR OUNDU FOR 2 ND ACCUSED;
He did not arrest 2 nd Accused. She was not on the bus. The presumptive test was not documented. He recorded it in his statement.
14. RE-EXAMINATION BY PROSECUTION
He recorded in his Statement that a presumptive test was conducted. At Pg 3 Paragraph it is indicated that he conducted a presumptive test and it was heroine.
15. PW 5: ADULT SWORN STATE IN ENGLISH/KISWAHILI
Denis Owino Onyango, working as Analyst at Government Chemist in Nairobi. He holds BSc from JKUAT in Chemistry and Bio Chemistry. He is a Gazetted Officer No. 6934 d/d 12/7/2007.
He had documents which he was relying on; certificate of weighing, certificate of sampling, police exhibit memo Form and report of Government analyst, together with samples of what were suspected drugs.
The weighing of brown powdery substance which was suspected to contain narcotic drugs was done by a weighing officer George Odhiambo, a police officer from the DCI. The total weight of the substance was 854.3 grams and he participated as a witness.
Others present were the accused persons namely Anne Achieng and Elizabeth Akinyi Mboga. Also present was Cpl Kenneth Kemeli, PC Muguna, Lilian Saka from crime scene support services.
The sampling was done on 22/8/2016 at Government Chemist at 1500 hours. From the total weight, he took a sample which culminated in preparation of certificate of sampling which reads in part; "52 brush handle D1-D52 containing brownish powdery substance was done by me and the total weight samples taken was 54.3 grams".
Witnesses present were the 2 accused, Cpl Kemeli, PC Kirimi Muguna, George Odhiambo and Lilian Saka d/d 22/8/2016. Time 1540 hours.
On 22/8/2016, he received a phone exhibit memo form accompanying the exhibit which was stamped and signed and an entry was made, code given Q 71/16.
The request was that he ascertain the content purity of the substance and confirm if they were drugs in Psychotropic Control Act 1994.
He proceeded to examine the powdery substance using a machine called gas chromatograph- gas spectroscopy machine. The findings were that the substances were methamphetamine a Psychotropic substance which is in Schedule 2 of the Act. He made a report ref Q 71/2016 which he signed on 24/10/2016 and sealed the same.
The sample were presented before court as police exhibit Memo dated 22/8/2016 – Ref Q 71/2016. He also had samples that he sampled. He prepared a report dated 24/8/2016 – MFI 19 produced as PEX 19 . He also prepared a certificate of weighing dated 22/8/2016 – MFI 20 produced as PEX 20 . Samples collection was marked as MFI 21 – PEX 21 .
16. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW5 Referred to certificate of weighing and stated that the brushes (brooms) were not sealed when they were brought to him. It was the Investigating Officer who availed/brought the 52 brushes to him.
He could not remember if the police indicated that they had conducted a spot test.
An accused/suspect can decline to sign a certificate of weighing. The investigating officer explained to accused that court witness in exercise of weighing and sampling they would be required to sign the invoice documents by virtue of having participated in the weighing and sampling. This was done by George Odhiambo.
The accused were escorted by police officers to the Government Chemist. The police came with the exhibit memo form already prepared. He was required to tell/ascertain the content in each of the 52 brushes. He did prepare a report in respect of each brush where were the exhibit memo. He had 52 sachets/samples. In his report he indicated that all of them had the same substance.
17. CROSS EXAMINED BY MR. OUNDU FOR 2 ND ACCUSED
PW5 stated that he prepared the certificate of sampling. It was in course of sampling; He identified the substance. He did inform them of their right to have a witness. He did not record this nor their response. The time was 1540 hours of sampling. He received the exhibit memo the same day. The time is not indicated. George Odhiambo brought the Memo. He was a witness to the sampling. The Exhibit Memo presented the samples.
18. PW6: ADULT SWORN -STATE IN ENGLISH
No. 231067 ASP George Mutiso. He is the County DCI Deputy Mahiga – Mombasa County. He stated that on 26/10/2016, he was approached by the Investigating Officer to make a Valuation Certificate in respect of some drugs seized in Naivasha.
Being Gazetted No 12710 dated 3/10/2011, he requested the Investigating Officer to provide him with an Analyst Report and a Weighing Certificate as proof of weighing. The Investigating Officer provided the report dated 24/10/16 and the Weighing Certificate of the drugs (meth) and the total weight was 854.3 grams. He checked through their daily intelligence brief 1 gram of meth was going for 8,000/- thus 854.3 grams X 8,000 totaled to Kshs.6,834,400/=. He prepared a Certificate and signed on 6/10/2016.
Certificate of Valuation MFI 22 produced as PEX 22 .
19. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
In cross-examination PW6 stated that he got the value from doing drugs intelligence brief. He did not alter the brief in his report.
20. CROSS EXAMINED BY MR. OUNDU FOR ACCUSED 2
PW6 stated that on 26/10/16, he prepared the report he was referred to do. The date was 25/8/2016. The value in the charge sheet was Kshs.2,562,900/=. The request was made to him on 26/10/2016. He did not know where the value of Kshs.2,562,900/= was brought. The charge sheet indicated Heroin. He was presented with the report from Government Chemist.
21. PW7: ADULT SWORN AND STATES IN ENGLISH
84167 Cpl. George Odhiambo. He was attached to ANU Headquarters. He performed investigation duties. He did recall on 19/8/2016, they received information about a suspect travelling from Uganda and suspected to be carrying narcotic drugs. Alongside Sgt. Joseph Kipruto, they proceeded to Naivasha in hand for the bus from Uganda to Nairobi.
Upon arrival to Naivasha, they were assisted by their traffic colleagues. They flagged down a bus operated by Modern Coast Modern 5 and the driver was directed to proceed to Naivasha police station.
At Naivasha Police Station, they instructed all passengers to alight from the bus, with their luggage. They started conducting search on the passengers.
One passenger, a female Anne Achieng, picked her luggage. Upon search, 53 cloth's brushes were found to be the content of her luggage. Upon search a substance was found on the handles of the 52 brushes. The substance was suspected to contain drugs. He made an inventory of goods found on her.
• Her Passport No. A2333622
• Inter certificate of vaccination bearing her name.
• Modern Coast express ticket KAIU0213 bearing her name seat No. 41 -business class.
• Piece of paper writing 41 which corresponded with another piece of paper in Modern Coast tied against her luggage.
He learned from the driver and confirmed that the luggage had tag. The one she held was for purposes of collecting the luggage.
• Tarmid Coach bus ticket dated 10/8/2016 bearing the name Anne Nairobi to Malindi
• Tarmid Coach ticket - Anne Achieng dated 12/8/2016-Mombasa to Dar es Salaam.
• Bus ticket Majinja special dated 15/8/2016 bearing Anne's Achieng from Mbeya to Dar es Salaam.
Bus ticket dated 17/8/2016 bearing the name Anne Achieng Dar es Salaam to Kampala. This indicated travel to Nairobi - Mombasa - Tanzania then to Uganda before coming back to Kenya. They obtained a normal bus chart from Modern Coast. It indicated that accused was seated on seat No. 41. The bus manifest confirmed the same.
They proceeded to Nairobi and kept accused in custody. On 20/8/2016, their colleagues from Nyando DCIO Headquarters arrested another suspect in connection with the office. The suspect was Elizabeth Akinyi. The suspect was brought to Nairobi. An inventory was made Mobile phones and sim cards. They organized for the Government Analyst and photographs on 27/8/2016.
They took the two to Government Chemist Nairobi for purpose of weighing and sampling of the substances found on the handles of the cloth brushes. He conducted the weighing of 52 packages which had brownish powdery substance. The total weight was 834 grams. The same was sampled by Dennis Owino Onyango. Immediately he prepared a Weighing Certificate. The 1 st and 2 nd Accused persons appended their signatures. One officer also signed.
Mr. Owino, prepared a search certificate signed by Accused 1 and Accused 2, The Crime Scene personnel and himself. He prepared an exhibit memo and left the samples with Government Analyst for comprehensive analysis.
Later Sgt. Joseph Kipruto prepared a notice of seizure notifying the Accused 1 the notice of seizure. He prepared record of custody of seized substances. He served it upon both accused who acknowledged by signing.
He prepared notice of intention as stated the record evidence which he served upon Accused 1 and Accused 2 and they signed it and acknowledged. He had a report from Government Analyst. The substance was found to contain methamphetamine a psychotropic substance under the Act. He engaged Mr. George Mutiso for purpose of Valuation of the substance. The suspects were later arraigned before the court to answer to the charges.
• Passport – MFI 23
• Certificate of Vaccination - MFI 24
• Ticket dated 18/8/2016 - MFI 7
• Other bus tickets MFI 25 (a) - (d)
• Luggage tag and.... tag - MFI 18
• Inventory - MFI 10
• Bus chart - MFI 5
• Bus manifest - MFI 6
• Inventory for Accused 2 - dated 20/8/2016 - MFI 26
• Certificate of weighing - MFI 27
• Exhibit memo – MFI 18
• Records of Gazette - MFI 28
• Notice of intention – MFI 29
• MFI 5, 6, 7, 8, 10, 18, 23, 24, 25 (a)- (d), 26, 27, 28 & 29 now produced as exhibits respectively. The cloth brooms 53 in numbers MFI 3, box MFI 1, black plastic polythene MFI 2 produced PEX 1, 2, 3 as marked.
22. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW7 stated that on 25/8/2016, the accused were charged. The preliminary test by Government Analyst indicated it was Heroine. The value was informed by the report by Mr. George Mutiso. The prices of methamphetamine and Heroine vary. Methamphetamine is much more expensive than Heroine.
They received information from their Intelligence sources. He took the witness statement of Accused 1 at the time of arrest. They also told the Accused 2 and the reason of her arrest on 19/8/2016. He could not recall the day of the week. The accused was arraigned on 22 nd . They were granted 3 days to hold the accused.
Accused 1 personally received luggage.
23. CROSS EXAMINED BY MR. OUNDU FOR ACCUSED 2
PW7 referred to weighing machine, this was done at the Government Chemist. The weighing was done previously. The record of custody is not dated. ( PEX 28 )
He supplied PEX 28 to defence i.e Accused 1 and Accused 2. He made the same date as the Weighing Certificate. Under the Act record of claim of custody was not provided and he did not arrest Accused 2. PC Muturi at Nyando DCI arrested Accused 2. He did not give evidence in this case. A search was done on 20/8/2016. In Nyando by PC Muiruri. He is a man. He did not testify. He was not present during the search. The inventory made reference to mobile phones and sim. What they had before court was a photocopy. I could not tell where the original was. A black Nokia Mobile Phone, 2 mobile phones, 2 Airtel sim card. Nokia phone black in colour and sim card.
It was not indicated if the goods/phone were returned to Accused 2. The same had not been produced as exhibit. They were also not examined by Heroine experts. No drugs were concealed in them. They should have been returned to Accused 2. Accused 2 was not on the Modern Coast bus. The passenger manifest does not contain her name. The normal chart indicated the passenger on the seat. Accused 2's name was not on the chart.
24. RULING
The Trial Court upon close of Prosecution case delivered Ruling on 30/9/2021, where the 2 nd Accused person was acquitted and the 1 st Accused was placed on her Defense on a case to answer.
25. DEFENSE HEARING
DW1: ANNE ACHIENG ANYANGA 1 ST ACCUSED PERSON
Adult Female Unsworn Statement States in Kiswahili
Achieng Anyanga. residing in Nairobi, Mathare North Area One. She is a business woman. She made clothes at Kariobangi North. She indicated that she understood the charges before court. She stated that she was a business woman. She made ladies clothes. She also bought Kitenge clothes form Uganda, Tanzania or Zaire. She had travelled to Kampala Uganda to buy Kitenge materials.
When she completed her purchase, she went and looked for transport to Nairobi. She did go to Modern Coast Offices. She asked for a chance. She was told that one passenger had paid for a ticket and was late. They offered to sell the bus ticket to her.
They left Kampala for Nairobi. Around Naivasha, the motor vehicle was flagged down. They were led to Naivasha Traffic Base. They were all ordered to alight. She had 2 parcels kept to the carrier of the bus. She removed her two-hand luggage.
When she got out, as she was on the rear seat. They were all placed on a queue. She had 2 bags in her possession. A Police Officer came and said he had her luggage. He said he had removed 2 parcels from all the motor vehicle. She told him that she only had 2 hand luggage. She disowned the luggage. She was then arrested. She was later escorted to Muthaiga Police and later charged with the offence.
She indicated that she was going to deny the charges against her. She did not even understand the charges. She has never done business worth that amount of money. She had never done business worth the amounts of money. She pleaded to be acquitted of the charges.
26. JUDGMENT
The Trial Court delivered judgment and convicted the Accused person /Appellant Anne Achieng Anyanga of the charges and sentenced her to fine of Ksh. 20,503,200 & to serve life imprisonment.
SUBMISSIONS
27. APPELLANT’S SUBMISSIONS
ANALYSIS OF THE LAW.
Whether the prosecution proved possession of the alleged narcotic drug beyond reasonable doubt,
The burden of proving every element of the offence, including possession, rests entirely upon the prosecution and must be discharged beyond reasonable doubt. It is trite that where doubt exists as to any ingredient of the offence, the benefit must go to the accused.
The offence for which the Appellant was convicted requires proof that she knowingly had actual or constructive possession and control of the narcotic substance. Possession is not established by mere proximity or association; there must be credible evidence demonstrating knowledge and control over the substance.
In the present case, the prosecution's case hinged on the allegation that the Appellant wa
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2. The learned Trial Chief Magistrate erred in law and fact ignoring prosecution evidence which was in the Appellant’s favor and materially contradicted the prosecution case.
3. The learned Trial Chief Magistrate erred in law and fact by finding the Appellant had a luggage tag labelled No.41 without any evidence of such recovery upon search thereby convicting the Appellant on findings not supported by evidence.
4. The learned Trial Chief Magistrate erred in fact and law by substituting "prove beyond reasonable doubt" (which is based on evidence) with" intelligence" which is not evidenced and ended up convicting the Appellant on this amorphous evidence against trite law that a conviction can only be premised on "proof beyond ant reasonable doubt"
5. The learned Trial Chief Magistrate erred in law and fact by failing to consider that the luggage was marked as originating from Nairobi and destined for Mombasa thereby contradicting the assertion that it originated from Kampala and was destined for Nairobi which contradiction ought to have been resolved in favor of the Appellant.
6. The learned Trial Chief Magistrate erred in fact and law by relying on the evidence of a bus driver who was not driving the bus at the material time and distance and by failing to consider that the driver who had control of the bus at the material time and distance was not even disclosed.
7. The learned Trial Chief Magistrate erred in fact and law by admitting as a fact a lie that the Appellant carried her luggage from the bus in the face of clear evidence from the prosecution by the scenes of crime photographer No. 86634 P.C. Peterson Njue (PW3), that when the passengers were lined outside the bus all their luggage was in the luggage compartment and they photographed it and that it is the police who removed the luggage including the questioned box and took it to the office which makes the conviction erroneous.
8. The learned Trial Chief Magistrate erred in fact and law by admitting and relying wholesomely on contradictory prosecution evidence without question and dismissing the Appellant's defense in one sentence without giving any reasons.
9. The learned Trial Chief Magistrate erred in fact and law by ignoring the fact that the prosecution case did not establish with clarity what the narcotic substance was (whether heroin, cocaine or Methamphetamine) that was allegedly being trafficked.
10. The learned Trial Chief Magistrate erred in fact and law by admitting and relying on evidence obtained in contravention of the law in violation of the Appellant's Constitutional right to a fair trial enshrined in Article 50(4) of the Constitution of Kenya 2010, namely that the search alleged to have been done on the Appellant and the luggage were against the law and illegal.
11. The learned Trial Chief Magistrate erred in fact and law by imposing a sentence that was manifestly excessive, inhuman and in fact unlawful ignoring the provisions of the constitution of Kenya 2010 Article 50(2)(p) [Constitution] which entitles a first offender the least of sentences prescribed for an offence.
TRIAL COURT PROCEEDINGS
1. PW1 EVIDENCE ON 14/5/2019
PW1, Kiplimo Bore, stated that he was driver of Modern Coast Express for 12 years. He was plying Nairobi-Busia-Kampala-Kigali-Rwanda. On 18/8/2016, he drove motor vehicle Registration Modern 5 Uganda registration No, he left Uganda at 9 pm. At Kisumu he handed over the motor vehicle to a driver Mr. Augustine. They stopped at Nakuru for breakfast.
They proceeded with the journey. At Naivasha, they were stopped by Police Officers, 2 men in plain clothes told them to drive the motor vehicle to the police station. They drove to Naivasha Police station.
While at the station, all the passengers were ordered to take possession of their luggage. One of the passengers a lady was taken over by police officer as suspect to the office. Augustine and him were called in. They showed us the lady who had been arrested and they were informed that she was trafficking drugs.
He was shown different plastic brushes which contained the drugs. He was shown different brushes - plastic handle and cloth brush pink and purple in color. They were in brown box (carton) marked MFI-1 The box was in a back polythene bag marked MFI-2 53 cloth/brushes marked MFI-3
The officer opened the box of the brush and he saw brown substance concealed in the hollow part of the brush.
(Witness demonstrates) he then recorded his statement with the police. He had his driving permit in court. He also had badge No. 5318/29 marked MFI-4 in the name of Kiplimo Bore.
He had a chart showing motor vehicle bookings to any particular day. He had a chart for 18/8/16. On this day the bus was fully booked from Kigali-Bus. Travel Bus Chart marked – MFI-5 Attached to the chart is a manifest showing the bounded clearance. He had the manifest for 18/8/16 marked MFI-6 It was stamped at Busia Uganda and Busia Kenya.
The passenger Anne Achieng sat on seat No. 41. He also had a bus ticket issued on 18/8/16 from Kampala to Nairobi. He had a tag 1 showing the seat number and name- MFI-7 He recorded his statement. Accused 1 was known to him (identified).
2. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
In cross-examination PW1 stated that when he got to Naivasha the following day. He was the driver, not the conductor. He did not concern himself with passenger’s luggage and that tickets are issued in their offices and the tag was also issued at the booking office. He was not the one who issued the tag. All the luggage must be tagged. All travelers are issued with travel tickets. He was not present when the luggage was tagged.
The motor vehicle was full. According to the chart No. 12 was the co-driver’s seat. The bus has 2 drivers. He did not know who was seated on to seat No. 44. According to the chart, the bus was fully booked. Passenger No. 44 boarded the bus at Kisumu. He saw the luggage at the police station having been removed from the bus. The drivers were all called to the office.
3. CROSS-EXAMINATION BY MR. OUNDU FOR 2 ND ACCD
PW1 stated that he saw the bus at the police station office. He did not see the luggage bag removed from the bus referred to the rag in court does not bear the names and does not disclose the destination.
It only showed the seat No. He presented to court a computer- generated document.
4. PW2: ADULT SWORN STATE IN ENGLISH
No. 63487 Sgt Joseph Kipruto of DCI Headquarters, currently attached to Safaricom, previously ANU till April 2018,
He stated that on 19/8/2016, he got information that there was a person who was bringing in drugs from Kampala to Nairobi. I and PC Odhiambo left Nairobi early morning and drove to Naivasha. The information was that the suspect was
using PSV Modern Coast Bus Registration Modern 5; a customized Uganda number plate. They got to Naivasha at 9.30 am, they sought assistance of Traffic officer. The bus arrived shortly before 11 am. The motor vehicle was stopped by police officers. They were directed by the officers to the police station. On arrival, they asked all the passengers to alight and collect their luggage, and also present ID documents. As they alighted, they went through the documents. They already had the name of the suspect. Her name was Anne Achieng Anyanga. He waited for her to pick her luggage. She picked a carton wrapped in black polythene bag.
They escorted the suspect to the DCI office Naivasha a few metres from where the motor vehicle was parked. He informed her that her luggage would be searched as the lady officer did a body search.
The box carton contained several cloth brushes ( MFI- 3 ). They inspected each and every piece of the brushes; a substance was concealed in the hollow space on the handle. The handle had a cork. There were 53 brushes marked D1-D53 . Out of the 53, 52 had brownish substance suspected to be narcotic drugs.
(Exhibit polythene bag - sealed torn open in court). Witness demonstrates how the substance were concealed in the brush handles. Pellet like substance marked D1-D52- MFI 9. They arrested the suspect and interviewed her. She said she had been sent by another lady. P.C.Odhiambo prepared an Inventory as is D/D. He signed the inventory, PC Njue and the suspect. Inventory marked MFI-10
The passport was recovered from Accused 1 - A2333622. Anyanga Anne Achieng-marked as MFI- 11 . She also had a bus ticket from Modern Coast ( MFI 7 ). The carton had a tag, it had no name but labelled seat No. 41 ( MFI 8 ). They also were with Scenes of Crime officer. They photographed the motor vehicle. They took 135 photographs marked as MFI -135.
He issued Notice of Seizure to the Bus addressed to Managing Director - (M.C) registration Modern 5 marked as MFI-13 (a).
He also seized the carton and brushes and issued the Notice to Anne A. Anyanga marked as MFI-13 (b).
The Investigating officer confirmed with the investigations, I later learnt that the substance was analyzed and found to be Heroine. He got this from the Investigating Officer. Our preliminary test at the seizure, the substances had reached to show for that they were narcotics.
Mr Wanyanga for 1 st Accused person applied to be supplied with 135 photographs to study and prepare for the Defense & Mr
Oundu supported [colleague’s application] The Trial Court stood down the witness.
5. PW3 ADULT SWORN STATES IN ENGLISH
No. 86634 P.C. Peterson Njue, crime scene investigation officer. G/N 217/1/1/2013. He stated that on 19/8/2016, he was requested by one P.C Mugambi of ANU, DCI Headquarters to document a motor vehicle that they had intercepted along Nairobi Naivasha Highway at Total Petrol Station Junction.
He found the motor vehicle parked at Naivasha Police Station Yard. They said that motor vehicle was carrying suspected drug dealers. MODERN 5 - belonging to Modern Coast was the registration number. Their left side 2 nd compartment, there was a luggage. They opened the compartment. They were made luggage. One had a tag. Modern Coast travel customer NRB-MSA No. 41. The luggage was inside a black polythene paper which was removed and taken into the office so that it would be opened. Inside the polythene bag was a box with brooms, made of plastic handles and cotton. They were of pink and purple in color.
One pink broom handle was opened on either side, it was stuffed with powder in between the handle. They were wrapped (powder) using clear paper.
They also requested to do a preliminary test. One was heroin, cocaine and the 3 rd one was methamine. Then he took photographs of the 3 reagents and also chemicals, the 3 reagents after the testing. He also took photographs of the items in bus without passengers. In total he took 36 photographs MFI-14. He prepared a report in respect of the photographs, which were processed at DCI Headquarters. He also prepared and signed a certificate- MFI-15 . Photographs 14 i-xxiv & Certificate 15.
6. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW3 stated that at the time of investigation, he was based at Naivasha crime scene. He found the bus parked at Naivasha police station. All passengers were outside the bus.
Their luggage was still in the compartments. He found the luggage inside the bus compartment. He supervised the processing at DCI Headquarters. There is a photographic department at DCI Headquarters. He produced a work ticket where they produced the photographs for processing. His camera had an SD card. He had not produced the SD card. It was described in the certificate. He stated that the certificate could be produced if required, he could produce it before court. The photographs were transferred from his SD to CD for processing.
7. CROSS EXAMINED BY OUNDU FOR ACCUSED 2
PW3 stated that he arrived at the police station during the day. He could not recall the exact time. He found the luggage in the compartment. He did not see the police make enquiries.
8. RE-EXAMINATION BY PROS
The Investigating Officer told him that they had forwarded about the luggage. The photography was not stage managed.
9. PW4: ADULT SWORN STATE IN ENGLISH
No. 235249 CI Lilian Saka at DCI Headquarters as Crime Scene Investigator. She stated that on 26/8/2016 at about 1230 hours, while at DCI Headquarter, she was called to attend to a scene where suspected narcotic drugs had been found and taken to Government Chemist for analysis. Upon request by Investigating Officer, she took a total of 138 photographs. She was doing the weighing, sampling and analysis process. The photographs showed the exhibit brooms and samples collected marked D1 - D52 and each marked exhibit was weighed. She took exhibit of D1-D52 being weighed and also being sampled. The photographs were altered. This took place at the Government Chemist. The photographs were before court. They were 138 in number, MFI-16 as a bundle. She prepared a Certificate -MFI -17. MFI-16 & MFI -17 now produced as Exh 16 & 17
10. CROSS-EXAMINATION BY MR. OUNDU FOR ACCUSED 2
PW4 stated PC George Odhiambo, asked her to take photographs. His name appeared on her report. She found the substance at Government Chemist. The Investigating Officer and the suspect were present. The substance was in the possession of the Investigating Officer.
She signed documents for analysis. She could not recall the number of the documents signed. The suspect was also present. The Investigating officer showed her the suspect. She did not photograph the suspects. She was not told to take photographs of suspects.
11. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW 4 in cross-examination by Mr. Wanyanga stated that the brushes were marked D1-D53 . She took photographs of the brooms with the top part removed. Referred to photograph marked 21, there was a powdery substance from the top part of the broom. The substance was inside a polythene paper inside the broom. She was the one who opened the tops of the brooms. The polythene was inside the brooms. The 1 st Photograph showed the exhibits in a box which was not sealed.
12. PW 2 SGT KIPRUTO JOSEPH- RECALLED FOR CROSS EXAMINATION- SWORN STATED
CROSS EXAMINATION BY MR WANYANGA FOR 1 ST ACCUSED
He stated that he did not participate in taking photographs by Scenes of Crime. They had intelligence in regard to the identity of 1 st Accused. The source of Intelligence could not be disclosed to Court. He did not spot test in the presence of the Accused1.PC Odhiambo did the test in my presence. The test was done by trained Anti-narcotic Officer. He was also a trained ANU Officer.
Mr Odhiambo did the testing. Presumptive test would guide them whether the substance was a narcotic. He conducted the arrest and recovery. Photographs were taken by Officers from Naivasha.
13. CROSS EXAMINATION BY MR OUNDU FOR 2 ND ACCUSED;
He did not arrest 2 nd Accused. She was not on the bus. The presumptive test was not documented. He recorded it in his statement.
14. RE-EXAMINATION BY PROSECUTION
He recorded in his Statement that a presumptive test was conducted. At Pg 3 Paragraph it is indicated that he conducted a presumptive test and it was heroine.
15. PW 5: ADULT SWORN STATE IN ENGLISH/KISWAHILI
Denis Owino Onyango, working as Analyst at Government Chemist in Nairobi. He holds BSc from JKUAT in Chemistry and Bio Chemistry. He is a Gazetted Officer No. 6934 d/d 12/7/2007.
He had documents which he was relying on; certificate of weighing, certificate of sampling, police exhibit memo Form and report of Government analyst, together with samples of what were suspected drugs.
The weighing of brown powdery substance which was suspected to contain narcotic drugs was done by a weighing officer George Odhiambo, a police officer from the DCI. The total weight of the substance was 854.3 grams and he participated as a witness.
Others present were the accused persons namely Anne Achieng and Elizabeth Akinyi Mboga. Also present was Cpl Kenneth Kemeli, PC Muguna, Lilian Saka from crime scene support services.
The sampling was done on 22/8/2016 at Government Chemist at 1500 hours. From the total weight, he took a sample which culminated in preparation of certificate of sampling which reads in part; "52 brush handle D1-D52 containing brownish powdery substance was done by me and the total weight samples taken was 54.3 grams".
Witnesses present were the 2 accused, Cpl Kemeli, PC Kirimi Muguna, George Odhiambo and Lilian Saka d/d 22/8/2016. Time 1540 hours.
On 22/8/2016, he received a phone exhibit memo form accompanying the exhibit which was stamped and signed and an entry was made, code given Q 71/16.
The request was that he ascertain the content purity of the substance and confirm if they were drugs in Psychotropic Control Act 1994.
He proceeded to examine the powdery substance using a machine called gas chromatograph- gas spectroscopy machine. The findings were that the substances were methamphetamine a Psychotropic substance which is in Schedule 2 of the Act. He made a report ref Q 71/2016 which he signed on 24/10/2016 and sealed the same.
The sample were presented before court as police exhibit Memo dated 22/8/2016 – Ref Q 71/2016. He also had samples that he sampled. He prepared a report dated 24/8/2016 – MFI 19 produced as PEX 19 . He also prepared a certificate of weighing dated 22/8/2016 – MFI 20 produced as PEX 20 . Samples collection was marked as MFI 21 – PEX 21 .
16. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW5 Referred to certificate of weighing and stated that the brushes (brooms) were not sealed when they were brought to him. It was the Investigating Officer who availed/brought the 52 brushes to him.
He could not remember if the police indicated that they had conducted a spot test.
An accused/suspect can decline to sign a certificate of weighing. The investigating officer explained to accused that court witness in exercise of weighing and sampling they would be required to sign the invoice documents by virtue of having participated in the weighing and sampling. This was done by George Odhiambo.
The accused were escorted by police officers to the Government Chemist. The police came with the exhibit memo form already prepared. He was required to tell/ascertain the content in each of the 52 brushes. He did prepare a report in respect of each brush where were the exhibit memo. He had 52 sachets/samples. In his report he indicated that all of them had the same substance.
17. CROSS EXAMINED BY MR. OUNDU FOR 2 ND ACCUSED
PW5 stated that he prepared the certificate of sampling. It was in course of sampling; He identified the substance. He did inform them of their right to have a witness. He did not record this nor their response. The time was 1540 hours of sampling. He received the exhibit memo the same day. The time is not indicated. George Odhiambo brought the Memo. He was a witness to the sampling. The Exhibit Memo presented the samples.
18. PW6: ADULT SWORN -STATE IN ENGLISH
No. 231067 ASP George Mutiso. He is the County DCI Deputy Mahiga – Mombasa County. He stated that on 26/10/2016, he was approached by the Investigating Officer to make a Valuation Certificate in respect of some drugs seized in Naivasha.
Being Gazetted No 12710 dated 3/10/2011, he requested the Investigating Officer to provide him with an Analyst Report and a Weighing Certificate as proof of weighing. The Investigating Officer provided the report dated 24/10/16 and the Weighing Certificate of the drugs (meth) and the total weight was 854.3 grams. He checked through their daily intelligence brief 1 gram of meth was going for 8,000/- thus 854.3 grams X 8,000 totaled to Kshs.6,834,400/=. He prepared a Certificate and signed on 6/10/2016.
Certificate of Valuation MFI 22 produced as PEX 22 .
19. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
In cross-examination PW6 stated that he got the value from doing drugs intelligence brief. He did not alter the brief in his report.
20. CROSS EXAMINED BY MR. OUNDU FOR ACCUSED 2
PW6 stated that on 26/10/16, he prepared the report he was referred to do. The date was 25/8/2016. The value in the charge sheet was Kshs.2,562,900/=. The request was made to him on 26/10/2016. He did not know where the value of Kshs.2,562,900/= was brought. The charge sheet indicated Heroin. He was presented with the report from Government Chemist.
21. PW7: ADULT SWORN AND STATES IN ENGLISH
84167 Cpl. George Odhiambo. He was attached to ANU Headquarters. He performed investigation duties. He did recall on 19/8/2016, they received information about a suspect travelling from Uganda and suspected to be carrying narcotic drugs. Alongside Sgt. Joseph Kipruto, they proceeded to Naivasha in hand for the bus from Uganda to Nairobi.
Upon arrival to Naivasha, they were assisted by their traffic colleagues. They flagged down a bus operated by Modern Coast Modern 5 and the driver was directed to proceed to Naivasha police station.
At Naivasha Police Station, they instructed all passengers to alight from the bus, with their luggage. They started conducting search on the passengers.
One passenger, a female Anne Achieng, picked her luggage. Upon search, 53 cloth's brushes were found to be the content of her luggage. Upon search a substance was found on the handles of the 52 brushes. The substance was suspected to contain drugs. He made an inventory of goods found on her.
• Her Passport No. A2333622
• Inter certificate of vaccination bearing her name.
• Modern Coast express ticket KAIU0213 bearing her name seat No. 41 -business class.
• Piece of paper writing 41 which corresponded with another piece of paper in Modern Coast tied against her luggage.
He learned from the driver and confirmed that the luggage had tag. The one she held was for purposes of collecting the luggage.
• Tarmid Coach bus ticket dated 10/8/2016 bearing the name Anne Nairobi to Malindi
• Tarmid Coach ticket - Anne Achieng dated 12/8/2016-Mombasa to Dar es Salaam.
• Bus ticket Majinja special dated 15/8/2016 bearing Anne's Achieng from Mbeya to Dar es Salaam.
Bus ticket dated 17/8/2016 bearing the name Anne Achieng Dar es Salaam to Kampala. This indicated travel to Nairobi - Mombasa - Tanzania then to Uganda before coming back to Kenya. They obtained a normal bus chart from Modern Coast. It indicated that accused was seated on seat No. 41. The bus manifest confirmed the same.
They proceeded to Nairobi and kept accused in custody. On 20/8/2016, their colleagues from Nyando DCIO Headquarters arrested another suspect in connection with the office. The suspect was Elizabeth Akinyi. The suspect was brought to Nairobi. An inventory was made Mobile phones and sim cards. They organized for the Government Analyst and photographs on 27/8/2016.
They took the two to Government Chemist Nairobi for purpose of weighing and sampling of the substances found on the handles of the cloth brushes. He conducted the weighing of 52 packages which had brownish powdery substance. The total weight was 834 grams. The same was sampled by Dennis Owino Onyango. Immediately he prepared a Weighing Certificate. The 1 st and 2 nd Accused persons appended their signatures. One officer also signed.
Mr. Owino, prepared a search certificate signed by Accused 1 and Accused 2, The Crime Scene personnel and himself. He prepared an exhibit memo and left the samples with Government Analyst for comprehensive analysis.
Later Sgt. Joseph Kipruto prepared a notice of seizure notifying the Accused 1 the notice of seizure. He prepared record of custody of seized substances. He served it upon both accused who acknowledged by signing.
He prepared notice of intention as stated the record evidence which he served upon Accused 1 and Accused 2 and they signed it and acknowledged. He had a report from Government Analyst. The substance was found to contain methamphetamine a psychotropic substance under the Act. He engaged Mr. George Mutiso for purpose of Valuation of the substance. The suspects were later arraigned before the court to answer to the charges.
• Passport – MFI 23
• Certificate of Vaccination - MFI 24
• Ticket dated 18/8/2016 - MFI 7
• Other bus tickets MFI 25 (a) - (d)
• Luggage tag and.... tag - MFI 18
• Inventory - MFI 10
• Bus chart - MFI 5
• Bus manifest - MFI 6
• Inventory for Accused 2 - dated 20/8/2016 - MFI 26
• Certificate of weighing - MFI 27
• Exhibit memo – MFI 18
• Records of Gazette - MFI 28
• Notice of intention – MFI 29
• MFI 5, 6, 7, 8, 10, 18, 23, 24, 25 (a)- (d), 26, 27, 28 & 29 now produced as exhibits respectively. The cloth brooms 53 in numbers MFI 3, box MFI 1, black plastic polythene MFI 2 produced PEX 1, 2, 3 as marked.
22. CROSS EXAMINED BY MR. WANYANGA FOR ACCUSED 1
PW7 stated that on 25/8/2016, the accused were charged. The preliminary test by Government Analyst indicated it was Heroine. The value was informed by the report by Mr. George Mutiso. The prices of methamphetamine and Heroine vary. Methamphetamine is much more expensive than Heroine.
They received information from their Intelligence sources. He took the witness statement of Accused 1 at the time of arrest. They also told the Accused 2 and the reason of her arrest on 19/8/2016. He could not recall the day of the week. The accused was arraigned on 22 nd . They were granted 3 days to hold the accused.
Accused 1 personally received luggage.
23. CROSS EXAMINED BY MR. OUNDU FOR ACCUSED 2
PW7 referred to weighing machine, this was done at the Government Chemist. The weighing was done previously. The record of custody is not dated. ( PEX 28 )
He supplied PEX 28 to defence i.e Accused 1 and Accused 2. He made the same date as the Weighing Certificate. Under the Act record of claim of custody was not provided and he did not arrest Accused 2. PC Muturi at Nyando DCI arrested Accused 2. He did not give evidence in this case. A search was done on 20/8/2016. In Nyando by PC Muiruri. He is a man. He did not testify. He was not present during the search. The inventory made reference to mobile phones and sim. What they had before court was a photocopy. I could not tell where the original was. A black Nokia Mobile Phone, 2 mobile phones, 2 Airtel sim card. Nokia phone black in colour and sim card.
It was not indicated if the goods/phone were returned to Accused 2. The same had not been produced as exhibit. They were also not examined by Heroine experts. No drugs were concealed in them. They should have been returned to Accused 2. Accused 2 was not on the Modern Coast bus. The passenger manifest does not contain her name. The normal chart indicated the passenger on the seat. Accused 2's name was not on the chart.
24. RULING
The Trial Court upon close of Prosecution case delivered Ruling on 30/9/2021, where the 2 nd Accused person was acquitted and the 1 st Accused was placed on her Defense on a case to answer.
25. DEFENSE HEARING
DW1: ANNE ACHIENG ANYANGA 1 ST ACCUSED PERSON
Adult Female Unsworn Statement States in Kiswahili
Achieng Anyanga. residing in Nairobi, Mathare North Area One. She is a business woman. She made clothes at Kariobangi North. She indicated that she understood the charges before court. She stated that she was a business woman. She made ladies clothes. She also bought Kitenge clothes form Uganda, Tanzania or Zaire. She had travelled to Kampala Uganda to buy Kitenge materials.
When she completed her purchase, she went and looked for transport to Nairobi. She did go to Modern Coast Offices. She asked for a chance. She was told that one passenger had paid for a ticket and was late. They offered to sell the bus ticket to her.
They left Kampala for Nairobi. Around Naivasha, the motor vehicle was flagged down. They were led to Naivasha Traffic Base. They were all ordered to alight. She had 2 parcels kept to the carrier of the bus. She removed her two-hand luggage.
When she got out, as she was on the rear seat. They were all placed on a queue. She had 2 bags in her possession. A Police Officer came and said he had her luggage. He said he had removed 2 parcels from all the motor vehicle. She told him that she only had 2 hand luggage. She disowned the luggage. She was then arrested. She was later escorted to Muthaiga Police and later charged with the offence.
She indicated that she was going to deny the charges against her. She did not even understand the charges. She has never done business worth that amount of money. She had never done business worth the amounts of money. She pleaded to be acquitted of the charges.
26. JUDGMENT
The Trial Court delivered judgment and convicted the Accused person /Appellant Anne Achieng Anyanga of the charges and sentenced her to fine of Ksh. 20,503,200 & to serve life imprisonment.
SUBMISSIONS
27. APPELLANT’S SUBMISSIONS
ANALYSIS OF THE LAW.
Whether the prosecution proved possession of the alleged narcotic drug beyond reasonable doubt,
The burden of proving every element of the offence, including possession, rests entirely upon the prosecution and must be discharged beyond reasonable doubt. It is trite that where doubt exists as to any ingredient of the offence, the benefit must go to the accused.
The offence for which the Appellant was convicted requires proof that she knowingly had actual or constructive possession and control of the narcotic substance. Possession is not established by mere proximity or association; there must be credible evidence demonstrating knowledge and control over the substance.
In the present case, the prosecution's case hinged on the allegation that the Appellant wa
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