(Being an appeal from original conviction and Sentence by Hon. Peter Wasike, Principal Magistrate, in Lamu PM`s Court Criminal Case No. E098 of 2024 delivered on 4/3/2025)
1. The Appellant was convicted of two counts of possession of narcotic drugs contrary to section 3(1) as read with section 3(2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The particulars of the offence in count 1 were that on the 22 nd March 2024 at around 2000 hours at Langoni location in Lamu central sub county within Lamu county he was found in possession of narcotic drugs namely bhang to wit 9 rolls, 22 satchets and half a kilogram with a street value of Ksh.20,000/= which were not in medical preparation for.
2. The particulars of the offence in count 3 were that on the same date, time and place as in count 1, he was found in possession of bhang to wit one piece of half smoked roll with a street value of 250/= which was not in medical preparation form.
3. The appellant was sentenced to serve 4 years imprisonment on each of the counts and the sentence was ordered to run concurrently. He was aggrieved by the conviction and the sentence and filed the instant appeal.
4. The grounds of appeal are that:
1. The trial court erred in law and fact in failing to find that the prosecution evidence was full of contradictions and invariances.
2. The trial court erred in law and fact in convicting the appellant without giving due consideration to his defence.
5. The appellant urged the court to quash the conviction and set aside the sentence of 4 years imposed by the trial court.
Case for prosecution
6. The case for the prosecution was that policemen from Lamu police station who included PC Mbevo PW1 and PC Thiongo PW2 were on patrol at Langoni village at 8pm when they received information that there were peopled in possession of drugs in a certain house. They were taken to the house. They stormed into the house and found the appellant and two other people, one of whom was the appellant`s co-accused (who was convicted and placed on community service). They found the appellant smoking a roll of bhang. They took possession of it. PC Thiongo searched the appellant and found him with another roll of bhang in his pocket. They searched the place. PC Mbevo saw a bag and opened it. He found 9 rolls of dry plant material and 82 tablets of cozepam. PC Thiongo saw a metallic tray under the bed which he found to contain 22 satchets of parked dry material. He also recovered a carrier bag near the bed with dry plant material of 0.5 kg. They also found packing papers. They arrested the three people and took them to the police station together with the exhibits. They prepared an inventory of the things recovered. The third person was said to have been a student and was released. The appellant and his co-accused were charged accordingly.
7. The case was investigated by Cpl Musa Egesa PW3. It was his evidence that he received the exhibits from the arresting officers. He prepared an exhibit memo of the 9 big rolls of dry plant material; the 22 satchets of dry plant material; loose dry plant in a blue carrier bag; and 82 white tablets. He prepared a separate exhibit memo for the half-smoked roll of dry plant material and the one roll of dry plant material found with the appellant. He escorted the exhibits to the government chemist laboratory, Mombasa. They were examined by a government analyst. He later received a report that the dry plant material was cannabis.
8. During the hearing PC Thiongo produced the following as exhibits:
i. The bag that contained the 9 big rolls………….P.Exh.1
ii. The 9 big rolls ………………………………………………P.Exh.6
iii. The tray that contained the 22 satchets ………P.Exh.2
iv. 22 satchets of dry plant material………………………..P.Exh. 5
v. A Blue carrier bag that contained loose dry plant material……………………………………………………………..P.Exh.3(a)
vi. The loose dry plant material ………………………………P.Exh.3(b)
vii. Dry plant material wrapped in newspaper…………..P.Exh.7
viii. The smoked roll ………………………………………………….P.Exh.9
ix. 15 packing papers ……………………………………………….P.Exh.11
x. Inventory……………………………………………………………..P. Exh.10
9. Cpl Egesa PW3 produced the two exhibit memos as exhibits, P.Exh.12 (a) and (b). He produced the two reports from the government analyst as exhibits, P.Exh.13(a) and (b).
Defence case
10. When placed to his defence, the appellant stated in an unsworn statement that he is a resident of Langoni in Lamu town and is a boda boda rider. That on 22/3/2024 a friend of his called Ibrahim had invited him to his house to break the fast. He had one roll of bhang for his own use. He was there at 8pm when they heard a knock on the door and policemen entered into the house. He was found with his roll of bhang. They were arrested and taken to the police station. His host Ibrahim was released upon paying money. He said that he did not know anything about the other drugs said to have been recovered in the house.
11. The appeal was disposed of by way of written submissions of the appellant and the respondent.
Submissions
12. The appellant submitted that it was not proved that he had knowledge of the presence of bhang in the house. That the evidence showed that he was a visitor in the house. That the bhang was found under the bed in a house that did not belong to him. Therefore, that the trial court was in error to find that he was in possession of the bhang.
13. The appellant relied on the case of Peter Mwangi Kariuki v Republic (2015) eKLR where the court held that:
In my view, possession includes two elements; namely being in physical control of the item and knowledge of having the item. To be guilty of possession, an accused person must be shown to have knowledge of two things, namely, that the accused knew the item was in his custody and secondly he knew that the item in question was prohibited. A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.
14. Also cited was the case of Jean Wanjala Songoi & Patrick Manyola v Republic (2014) eKLR where the court held that:
“…Possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others.”
15. The appellant submitted that there was no evidence to link him with the bhang found in his friend`s house.
Respondent`s submissions
16. The respondent conceded to the appeal on the ground that the government analyst did not testify in the case but his report was produced in court by the investigating officer without any basis being laid out as required by sections 77 and 33 of the Evidence Act. That failure to call the expert witness was a miscarriage of justice as the appellant was not given an opportunity to test the accuracy of the expert`s opinion through cross-examination. Additionally, that the court was not told of the methodology used to ascertain that the dry plant material was cannabis. Reliance on the above was placed in the Court of Appeal decision in Kisumu Criminal App. No. 26 2004, Soki v Republic [2004] 2 KLR 21, 27 .
17. It was submitted that the government analyst`s report was admitted without explaining to the appellant his right to seek to cross-examine the maker of the report.
Analysis and determination
18. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:
“ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
19. The issues for determination in the appeal are whether the dry plant material was found in the house where the appellant was arrested; whether the same was bhang as contended in the charge sheet and whether the appellant was found in possession of the same.
20. The police witnesses PW1 and PW2 testified that they received a tip off that there were people in a certain house who were in possession of bhang. They stormed the house and searched it. They retrieved from the house 9 rolls of dry plant material, 22 satchets of the same and some other loose dry plant of the same. The appellant was searched and one roll of dry plant material was found in his pockets.
21. The appellant admitted to have been found with one roll of bhang in his pockets. He denied knowledge of the other dry plant material.
22. From the evidence adduced before the trial court there was no doubt that the policemen found the dry plant material in the house where the appellant was arrested. The appellant admitted to have been found in the said house. He admitted to have been found with one roll of dry plant material in his pockets. I find that the plant material was found in the house as testified by the police officers. The question is whether the plant material found in the house and from the pocket of the appellant was bhang as contended in the charge sheet.
23. It was the duty of the prosecution to prove that the dry plant material was bhang. The government analyst who examined the dry plant material did not testify in the case. Instead, his report was produced in court by the investigating officer PW3. The question is whether the investigating officer was competent to produce the report of the government analyst in court as exhibit.
24. Section 77 of the Evidence Act provides for production of documents by persons other than their makers. It provides as follows:
“77. Reports by Government analysts and geologists
1. In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
2. The Court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
3. When any report is so used the Court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.
24. That section has to be read in conjunction with section 33 of the Evidence Act that provides that:
“33. Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the Court unreasonable, are themselves admissible in the following cases—
a. ….;
b. made in the course of business
when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;”
25. It is clear from the provisions of the above sections that before a witness who is not a maker of a document can tender such evidence in court, a basis must first be established in accordance with the provisions of Section 33 of the Evidence Act. This was emphasized in the case of Fahim Salim Swaleh v Republic [2001] eKLR , where Onyancha J. (as he then was) expressed himself as follows on the issue:
Under section 33, statements written or oral, of admissible facts made by persons whose attendance inter alia, cannot be procured or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to be unreasonable, are themselves admissible when such a statement among other conditions, was made in the discharge of a professional duty such as was the case herein. It is however now an established practice and law that before the Court admits such a statement (which in this case, is the Government Analyst report) it has to be satisfied that the necessary conditions for such admission have been proved on the Court record. The person producing the report who in this case was PW4 had to record reasons why the maker of the report, (here the Government Analyst), was not present to produce the report. Was the Analyst dead or completely unavailable? Was his attendance unprocurable completely or unprocurable due to prohibitive or unreasonable expense?....Clearly no such foundation was in this case laid on the record before the report was introduced into evidence.
26. In the Julius Karisa Charo v Republic [2005] eKLR ,it was held as follows:
“Decided cases in this point are unanimously that with regard to the production of expert evidence in court, police officers must not be the people to play that role. The ordinary consideration being the chance for the accused person and his counsel to cross-examine the person called to produce the document. Since, medical (or scientific) evidence normally tends to be conclusive, great care has to be taken to ensure that where the person who conducted the examination is not available the person called in his place is technically qualified in the field in question to provide opinion.”
27. The Court of Appeal in the cases of Soki v Republic [2004] 2 KLR 21, 27 has settled the issue of production of documents under section 77 of the Evidence Act by persons who are not the makers of the documents. In that case it was held that:
“Before we allow this appeal, as we must do, we need to comment on the manner P3 (Exhibit 1) was produced and the way it was dealt with by the trial Court and the superior Court. Section 77 (1) allows any document purporting to be report under hand of a government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis to be used in evidence. The same could be produced by a police officer as was done in this case provided the accused does not object. It is however necessary that in a case such as this where an accused person is not represented by a counsel, that the accused be made aware of the consequences of the P3 or such other documents being produced by the police in the absence of the maker of such a document. The Court should explain to the accused his right to insist on seeking to cross-examine the maker if he so wishes. In this case, the appellant, should have been made aware that he could seek to cross examine the maker of P3 if he so wished. That was not done but we make haste to add that in our view, nothing turns on that omission as in any case the ingredients of the offence of robbery were satisfied even if injuries were not proved.”
28. It is clear from the above authorities that the prosecution was required to lay a basis as to why the government analyst was not available to appear in court to produce his report. I have examined the record of the trial court. There is no record of any attempt having been made to secure the attendance of the government analyst. No summons were ever issued to him. In the case of in James Bari Munyoris-vs- Republic [2010] eKLR where the prosecution failed to call the maker of the document to testify in the case, the court had this to say;
"….The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond prosecution's control. The record shows that Dr. Mburu had been transferred to Kenyatta National Hospital. There was no evidence to show that the police attempted and failed to secure Dr. Mburu's attendance in court......"
29. It is my finding that the prosecution failed to lay a basis for the investigating officer producing the government analyst`s report as exhibit in court.
30. The Investigating officer could however produce the government analyst`s report in court with the consent of the appellant and upon explaining to him his right to have the report being produced by the maker. No such consent was sought from the appellant. The appellant was not asked on whether he had any objection to the report being produced by the investigating officer. Article 50(2) of the Constitution of Kenya 2010 grants an accused person the right to cross-examine his accuser. The production of the document by the investigating officer without the consent of the appellant was prejudicial to him as it denied him the right to cross-examine the maker of the document. Consequently, the analyst`s report was irregularly produced in court and that being so it had no probative value. There was thus no evidence that the plant material found in the house of the appellant was a narcotic drug and more particularly that it was bhang. The conviction was not safe. The respondent rightly conceded to the appeal.
31. The upshot is that the case against the appellant was not proved beyond reasonable doubt. In the premises, the conviction entered against him is quashed and the sentence set aside. The appellant is set at liberty forthwith.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Oluoch for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant – Rahma
1. The Appellant was convicted of two counts of possession of narcotic drugs contrary to section 3(1) as read with section 3(2) (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The particulars of the offence in count 1 were that on the 22 nd March 2024 at around 2000 hours at Langoni location in Lamu central sub county within Lamu county he was found in possession of narcotic drugs namely bhang to wit 9 rolls, 22 satchets and half a kilogram with a street value of Ksh.20,000/= which were not in medical preparation for.
2. The particulars of the offence in count 3 were that on the same date, time and place as in count 1, he was found in possession of bhang to wit one piece of half smoked roll with a street value of 250/= which was not in medical preparation form.
3. The appellant was sentenced to serve 4 years imprisonment on each of the counts and the sentence was ordered to run concurrently. He was aggrieved by the conviction and the sentence and filed the instant appeal.
4. The grounds of appeal are that:
1. The trial court erred in law and fact in failing to find that the prosecution evidence was full of contradictions and invariances.
2. The trial court erred in law and fact in convicting the appellant without giving due consideration to his defence.
5. The appellant urged the court to quash the conviction and set aside the sentence of 4 years imposed by the trial court.
Case for prosecution
6. The case for the prosecution was that policemen from Lamu police station who included PC Mbevo PW1 and PC Thiongo PW2 were on patrol at Langoni village at 8pm when they received information that there were peopled in possession of drugs in a certain house. They were taken to the house. They stormed into the house and found the appellant and two other people, one of whom was the appellant`s co-accused (who was convicted and placed on community service). They found the appellant smoking a roll of bhang. They took possession of it. PC Thiongo searched the appellant and found him with another roll of bhang in his pocket. They searched the place. PC Mbevo saw a bag and opened it. He found 9 rolls of dry plant material and 82 tablets of cozepam. PC Thiongo saw a metallic tray under the bed which he found to contain 22 satchets of parked dry material. He also recovered a carrier bag near the bed with dry plant material of 0.5 kg. They also found packing papers. They arrested the three people and took them to the police station together with the exhibits. They prepared an inventory of the things recovered. The third person was said to have been a student and was released. The appellant and his co-accused were charged accordingly.
7. The case was investigated by Cpl Musa Egesa PW3. It was his evidence that he received the exhibits from the arresting officers. He prepared an exhibit memo of the 9 big rolls of dry plant material; the 22 satchets of dry plant material; loose dry plant in a blue carrier bag; and 82 white tablets. He prepared a separate exhibit memo for the half-smoked roll of dry plant material and the one roll of dry plant material found with the appellant. He escorted the exhibits to the government chemist laboratory, Mombasa. They were examined by a government analyst. He later received a report that the dry plant material was cannabis.
8. During the hearing PC Thiongo produced the following as exhibits:
i. The bag that contained the 9 big rolls………….P.Exh.1
ii. The 9 big rolls ………………………………………………P.Exh.6
iii. The tray that contained the 22 satchets ………P.Exh.2
iv. 22 satchets of dry plant material………………………..P.Exh. 5
v. A Blue carrier bag that contained loose dry plant material……………………………………………………………..P.Exh.3(a)
vi. The loose dry plant material ………………………………P.Exh.3(b)
vii. Dry plant material wrapped in newspaper…………..P.Exh.7
viii. The smoked roll ………………………………………………….P.Exh.9
ix. 15 packing papers ……………………………………………….P.Exh.11
x. Inventory……………………………………………………………..P. Exh.10
9. Cpl Egesa PW3 produced the two exhibit memos as exhibits, P.Exh.12 (a) and (b). He produced the two reports from the government analyst as exhibits, P.Exh.13(a) and (b).
Defence case
10. When placed to his defence, the appellant stated in an unsworn statement that he is a resident of Langoni in Lamu town and is a boda boda rider. That on 22/3/2024 a friend of his called Ibrahim had invited him to his house to break the fast. He had one roll of bhang for his own use. He was there at 8pm when they heard a knock on the door and policemen entered into the house. He was found with his roll of bhang. They were arrested and taken to the police station. His host Ibrahim was released upon paying money. He said that he did not know anything about the other drugs said to have been recovered in the house.
11. The appeal was disposed of by way of written submissions of the appellant and the respondent.
Submissions
12. The appellant submitted that it was not proved that he had knowledge of the presence of bhang in the house. That the evidence showed that he was a visitor in the house. That the bhang was found under the bed in a house that did not belong to him. Therefore, that the trial court was in error to find that he was in possession of the bhang.
13. The appellant relied on the case of Peter Mwangi Kariuki v Republic (2015) eKLR where the court held that:
In my view, possession includes two elements; namely being in physical control of the item and knowledge of having the item. To be guilty of possession, an accused person must be shown to have knowledge of two things, namely, that the accused knew the item was in his custody and secondly he knew that the item in question was prohibited. A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.
14. Also cited was the case of Jean Wanjala Songoi & Patrick Manyola v Republic (2014) eKLR where the court held that:
“…Possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others.”
15. The appellant submitted that there was no evidence to link him with the bhang found in his friend`s house.
Respondent`s submissions
16. The respondent conceded to the appeal on the ground that the government analyst did not testify in the case but his report was produced in court by the investigating officer without any basis being laid out as required by sections 77 and 33 of the Evidence Act. That failure to call the expert witness was a miscarriage of justice as the appellant was not given an opportunity to test the accuracy of the expert`s opinion through cross-examination. Additionally, that the court was not told of the methodology used to ascertain that the dry plant material was cannabis. Reliance on the above was placed in the Court of Appeal decision in Kisumu Criminal App. No. 26 2004, Soki v Republic [2004] 2 KLR 21, 27 .
17. It was submitted that the government analyst`s report was admitted without explaining to the appellant his right to seek to cross-examine the maker of the report.
Analysis and determination
18. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:
“ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
19. The issues for determination in the appeal are whether the dry plant material was found in the house where the appellant was arrested; whether the same was bhang as contended in the charge sheet and whether the appellant was found in possession of the same.
20. The police witnesses PW1 and PW2 testified that they received a tip off that there were people in a certain house who were in possession of bhang. They stormed the house and searched it. They retrieved from the house 9 rolls of dry plant material, 22 satchets of the same and some other loose dry plant of the same. The appellant was searched and one roll of dry plant material was found in his pockets.
21. The appellant admitted to have been found with one roll of bhang in his pockets. He denied knowledge of the other dry plant material.
22. From the evidence adduced before the trial court there was no doubt that the policemen found the dry plant material in the house where the appellant was arrested. The appellant admitted to have been found in the said house. He admitted to have been found with one roll of dry plant material in his pockets. I find that the plant material was found in the house as testified by the police officers. The question is whether the plant material found in the house and from the pocket of the appellant was bhang as contended in the charge sheet.
23. It was the duty of the prosecution to prove that the dry plant material was bhang. The government analyst who examined the dry plant material did not testify in the case. Instead, his report was produced in court by the investigating officer PW3. The question is whether the investigating officer was competent to produce the report of the government analyst in court as exhibit.
24. Section 77 of the Evidence Act provides for production of documents by persons other than their makers. It provides as follows:
“77. Reports by Government analysts and geologists
1. In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
2. The Court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
3. When any report is so used the Court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.
24. That section has to be read in conjunction with section 33 of the Evidence Act that provides that:
“33. Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the Court unreasonable, are themselves admissible in the following cases—
a. ….;
b. made in the course of business
when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;”
25. It is clear from the provisions of the above sections that before a witness who is not a maker of a document can tender such evidence in court, a basis must first be established in accordance with the provisions of Section 33 of the Evidence Act. This was emphasized in the case of Fahim Salim Swaleh v Republic [2001] eKLR , where Onyancha J. (as he then was) expressed himself as follows on the issue:
Under section 33, statements written or oral, of admissible facts made by persons whose attendance inter alia, cannot be procured or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to be unreasonable, are themselves admissible when such a statement among other conditions, was made in the discharge of a professional duty such as was the case herein. It is however now an established practice and law that before the Court admits such a statement (which in this case, is the Government Analyst report) it has to be satisfied that the necessary conditions for such admission have been proved on the Court record. The person producing the report who in this case was PW4 had to record reasons why the maker of the report, (here the Government Analyst), was not present to produce the report. Was the Analyst dead or completely unavailable? Was his attendance unprocurable completely or unprocurable due to prohibitive or unreasonable expense?....Clearly no such foundation was in this case laid on the record before the report was introduced into evidence.
26. In the Julius Karisa Charo v Republic [2005] eKLR ,it was held as follows:
“Decided cases in this point are unanimously that with regard to the production of expert evidence in court, police officers must not be the people to play that role. The ordinary consideration being the chance for the accused person and his counsel to cross-examine the person called to produce the document. Since, medical (or scientific) evidence normally tends to be conclusive, great care has to be taken to ensure that where the person who conducted the examination is not available the person called in his place is technically qualified in the field in question to provide opinion.”
27. The Court of Appeal in the cases of Soki v Republic [2004] 2 KLR 21, 27 has settled the issue of production of documents under section 77 of the Evidence Act by persons who are not the makers of the documents. In that case it was held that:
“Before we allow this appeal, as we must do, we need to comment on the manner P3 (Exhibit 1) was produced and the way it was dealt with by the trial Court and the superior Court. Section 77 (1) allows any document purporting to be report under hand of a government analyst, medical practitioner or any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis to be used in evidence. The same could be produced by a police officer as was done in this case provided the accused does not object. It is however necessary that in a case such as this where an accused person is not represented by a counsel, that the accused be made aware of the consequences of the P3 or such other documents being produced by the police in the absence of the maker of such a document. The Court should explain to the accused his right to insist on seeking to cross-examine the maker if he so wishes. In this case, the appellant, should have been made aware that he could seek to cross examine the maker of P3 if he so wished. That was not done but we make haste to add that in our view, nothing turns on that omission as in any case the ingredients of the offence of robbery were satisfied even if injuries were not proved.”
28. It is clear from the above authorities that the prosecution was required to lay a basis as to why the government analyst was not available to appear in court to produce his report. I have examined the record of the trial court. There is no record of any attempt having been made to secure the attendance of the government analyst. No summons were ever issued to him. In the case of in James Bari Munyoris-vs- Republic [2010] eKLR where the prosecution failed to call the maker of the document to testify in the case, the court had this to say;
"….The prosecution must show that it took due diligence on their part to secure the attendance of the maker of the document. It must be shown that the witness was absent for reasons beyond prosecution's control. The record shows that Dr. Mburu had been transferred to Kenyatta National Hospital. There was no evidence to show that the police attempted and failed to secure Dr. Mburu's attendance in court......"
29. It is my finding that the prosecution failed to lay a basis for the investigating officer producing the government analyst`s report as exhibit in court.
30. The Investigating officer could however produce the government analyst`s report in court with the consent of the appellant and upon explaining to him his right to have the report being produced by the maker. No such consent was sought from the appellant. The appellant was not asked on whether he had any objection to the report being produced by the investigating officer. Article 50(2) of the Constitution of Kenya 2010 grants an accused person the right to cross-examine his accuser. The production of the document by the investigating officer without the consent of the appellant was prejudicial to him as it denied him the right to cross-examine the maker of the document. Consequently, the analyst`s report was irregularly produced in court and that being so it had no probative value. There was thus no evidence that the plant material found in the house of the appellant was a narcotic drug and more particularly that it was bhang. The conviction was not safe. The respondent rightly conceded to the appeal.
31. The upshot is that the case against the appellant was not proved beyond reasonable doubt. In the premises, the conviction entered against him is quashed and the sentence set aside. The appellant is set at liberty forthwith.
Delivered, dated and signed at GARSEN this 18 th day of September 2026
In the presence of:
Mr. Oluoch for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant – Rahma