1. The appellant, Maimuna Jumanne Amir is was convicted of the offence of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245) Laws of Kenya). Particulars were that on 14/3/2021 at Moi International Airport in Changamwe Sub-County within Mombasa County, jointly with others not before court trafficked by conveying a narcotic drug namely Heroin to wit 5,389 grams with a market value of KShs 16,167,000/= concealed in a black travelling bag in contravention of the provisions of the said Act.
2. The prosecution presented 9 witnesses before the trial court in support of its case. PW 1, PC Fred Kitili worked at the Moi International Airport Anti-narcotics officer performing drug investigation duties. PW 2, Mathew Ondiri, was a KRA customs officer working as a supervisor at the passenger terminal, Moi International Airport. PW 3, Sgt Benson Ingosi was performing crime scene investigations duties and based at Regional headquarters. PW 4, Cpl Patrick Odhiambo Otieno, was based at the CID, Moi International Airport, Mombasa Anti-Narcotics unit. PW 5, David Ngumbao, was a government analyst based at Government Chemist, Mombasa. PW 6, C.I.P. Elizabeth Lumumba was a valuation officer in the Anti-Narcotics department based at Provincial headquarters, Nairobi. PW 7, I.P. Ali Bashir was at the time based at Mombasa anti-narcotics office. PW 8, Kioko Mutunga, worked with Kenya Airways at customer service to record luggage whose owners have not picked, looking for consignments of customers which have not arrived and responding to customers on any query about their luggage. PW 9, Cpl Mary Mugi, was the investigating officer in this case. At the time, she was based at DCI headquarters Anti-Narcotics unit, Nairobi.
3. The appellant gave sworn evidence in defence and denied that she had committed the offence. She did not call a witness.
4. Upon full hearing of the case, the trial court was satisfied that the prosecution had proved its case against the appellant beyond a reasonable doubt. It found her guilty, convicted her and sentenced her to a fine of KShs 48,501,000/= or serve ten years’ imprisonment and in addition to serve 35 years imprisonment.
5. The appellant was dissatisfied with the trial court’s decision, and she has filed the present appeal based on the grounds outlined in her petition of appeal dated 13/2/2024 as follows:
a. That the magistrate erred in law and fact by disregarding the appellant’s evidence.
b. That the magistrate erred in law and fact by failing to give reasons why the appellant was placed on her defence.
c. That the magistrate erred in law and fact by regarding contradictory evidence of prosecution witnesses that left a lot of doubt in the circumstances.
d. That the magistrate erred in law and fact by failing to consider the gaps in the prosecution’s case created by failure to call crucial witnesses who would have vindicated the appellant.
e. That the magistrate erred in law and fact by failing to take into account the mitigation as given by the appellant.
6. The appellant therefore prays that the appeal be allowed, the judgment quashed and the sentence set aside.
7. The appeal was heard by way of written submissions filed by the appellant but none by the respondent despite being given several opportunities to do so.
8. Learned counsel for appellant submitted all the grounds of appeal together. He submitted that the prosecution failed to discharge its legal burden of proof to the required standard due to insufficient and contradictory evidence.
9. Learned counsel submitted that although PW 2 said that at the first scan of the bags on 12/3/2021 at the Moi International Airport, the black bag showed some peculiar characteristics, no images of the scans were produced in court as exhibits. Yet the same bags had been cleared all the way from Oliver Tambo airport in South Africa through Ethiopia to Moi International Airport in Mombasa. He submitted further that there was an unexplained break in the chain of custody of the appellant’s bags from the time they arrived at the Moi International Airport on 12/3/2021 to the time she collected them on 14/3/2021. He cited the case of Bernard Omondi Odullo v R Cr. App. No. 66 of 2000 to support that submission. However, he did not provide a copy of the decision and I have been unable to find the full decision of the Kenyalaw website.
10. Learned counsel submits that the trial court improperly admitted as exhibit Form F89 (Exh. 13) which was a duplicate yet it was secondary evidence. He supported his submission with the case of In re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu – Deceased [2016] KEHC 6987 (KLR) on the conditions to be satisfied by a party who wishes to rely on secondary evidence.
11. The other submissions relate to inconsistencies in the evidence of some of the witnesses.
12. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted in several other decisions for instance in Njoroge v Republic (1987) KLR 19.
14. In summary, the prosecution’s case was that acting on intelligence report that there were people coming through the Moi International Airport with narcotic drugs, PW 7, IP Ali Bashir Oloo who had the mandate to coordinate issues of anti-narcotics in Mombasa briefed police officers at the airport and asked them to be on the alert.
15. PW 1 and PW 4 stationed themselves at the airport reception area on 12/3/2021. PW 2, a customs official who was present at the time said that in fact they were working as a multi-agency team, among them PW 1 and PW 4. An Ethiopian Airline flight from Addis Ababa landed at 12.30 p.m. Luggage from the flight was received and it went through the conveyor belt. PW 1 said that two bags, one beige (Exh. 1a) and the other black (Exh. 1b) each bearing the name Maimuna Amir Jumanne remained on the conveyor belt unclaimed. But according to PW 2, there were a total of 6 bags that remained unclaimed.
16. The two bags bearing the name Maimuna Amir Jumanne went through the scanning machine and PW 2 said that the black bag showed peculiar characteristics in its content. It weighed 42.85Kg. PW 2 completed a notice of goods deposited in customs warehouse (Form F89) (Exh. 2) and the bags were kept in the customs office to await collection by the owner. He said that customers are only allowed to enter the office in company of a customs officer.
17. On 14/3/2021, the appellant arrived at the airport aboard an Ethiopian Airline flight ET 322 and in company of a ground handler Kioko, PW 8, she went to claim for her bag from the customs office. She produced her passport (Exh. 3) which was in the name of Amir Maimuna Jumanne. PW 2 took her to the customs office store and she identified her bags. PW 2 said that she confirmed they were intact and took them. She signed on the duplicate Form F89 (Exh. 13) to confirm that she had taken the bags from the customs offices while they were intact and left with PW 8 to the ground handler’s office.
18. PW 8 said that the two bags kept at the customs office were handed over to him by his colleague Morris Seme when he reported for duty on 12/3/2021 at 5.00 p.m. The bags remained there until 14/3/2021 when the appellant Maimuna Amir who had arrived on an Ethiopian Airline flight No. ET 0322 at around 12.23 p.m. went to him and claimed her luggage that had arrived earlier. He escorted her to the custom’s offices and she picked her luggage and she was referred back to PW 8 for recording. He entered the details in the mishandled baggage register (Exh. 25) where the appellant signed. She confirmed that her luggage was intact. He escorted her to the KRA customs and handed over to them.
19. PW 2 said that when the appellant went bag to them from the ground handler’s office she went to the scanner where PW 2. Her bags were marked “for opening.” She opened the bags and, in the beige/grey bag it was full of clothes while the black bag was half full of clothes. The customs officers completed their work.
20. The anti-narcotics officers came in from that point and asked the appellant to accompany them to their offices. PW 2 accompanied them too.
21. PW 1, PW 2, PW 3, PW 4, PW 7 and PW 9 were all present. The appellant was requested for and surrendered her Tanzanian passport (Exh. 3) to PW 7. The officers informed the appellant of their intention to search her bags. PW 1 removed all the clothes and nothing illegal was found. PW 7 however said that he lifted each of the bags and in spite of the black bag being “empty” it remained unusually heavy. From his experience in dealing with narcotics, he cut open the bottom of the black suitcase using a knife and at the tip of the knife, there was a brownish substance. He then dismantled what he termed “false bottom” and recovered four packages that contained a brownish substance which they suspected to be narcotic drugs, two at the bottom and two others at the top of the suitcase. On top of the four packages was a reddish substance (Exh. 4) which covered them and which, according to PW 7 from his experience, was pepper used to put off sniffer dogs used at the airports. PW 7 prepared an inventory (Exh. 10) of the relevant items recovered. He also prepared a certificate of search (Exh. 16) and all the officers present as well as the appellant signed it.
22. PW 9, Cpl Mary Mugi prepared an Exhibit Memo form (Exh. 17) of the recovered substance. The police officers proceeded to the government chemist with the appellant. PW 7 weighed the substance suspected to be narcotic drugs and got a weight of 5389 grammes while the reddish substance weighed 473 grammes, making the total weight 5862 grammes. He prepared a certificate of weighing (Exh. 11).
23. PW 5, the government analyst took samples of the substances from each of the four cello taped black polythene bags and analyzed the substance therein which were brownish granules and upon subjecting them to analysis, he found that they were narcotic drugs, namely, Heroine. The reddish powdery substance was however found not to be a narcotic drug. He prepared a certificate of sampling (Exh. 12). He also produced the samples he had taken from the substances (Exh. 19M1 to 19M5.
24. PW 3 took photographs of the scene in the anti-narcotics offices at the time the suitcases were opened and also at the government chemist (Exh. 14(a) to 14(l)).
25. PW 6 gave the estimates of the value of the recovered narcotic drugs as KShs 16,167,000/=. She said her estimates were arrived at by using intelligence information from their undercover intelligence officers, the United Nations Office on Drugs and Crime, drug enforcement agency and from recent suspects and interrogated on the recent trends at the time which estimated the value to be KShs 3,000/= per gram making it KShs 16,167,000/= for 5389 grammes.
26. PW 9 had the appellant subsequently charged with the offence.
27. In her defence, the appellant denied that she committed the offence. She said she is a citizen of Tanzania from Zanzibar, Changombe near Dar-es-salaam. She said she doing business of selling charcoal and meat. She has four children and not married. She said she is illiterate but was given a paper to sign at the airport.
28. She was travelling from South Africa where she had gone to visit her sister Suleha Hamis. Her sister gave her two bags of clothes to take to her sister’s friend Hadiya, in Kenya. She travelled on Kenya Airways through Ethiopia where they arrived on 12/3/2021 at around 6.00 a.m. She had a change of flight. Her two bags were screened twice and cleared for travel. She proceeded to the passport area. It was during the Covid 19 period and when her temperature was taken, it was found to be high. She was detained to await clearance by a doctor and so she could not travel. She was tested and found without C19 and cleared to travel on 14/3/2021 at 10.00 a.m. By this time, her luggage had already left Ethiopia to Kenya. She arrived in Kenya at the Moi International Airport on 14/3/2021 at midday.
29. She claimed her two bags and she was asked for her passport and then taken to the customs offices. She was given the two bags and she noticed that the pink bag was cut while the black bag was pressed. She quarreled the officers but they apologized and told her that in case she found anything missing she should register her complaint. The bags were screened and she was asked to open them. They were found to have clothes and she was allowed to go.
30. On her way, she was stopped by two men who said they wanted to conduct further investigations of the bags. One more man came and introduced himself as a police officer. They took her bags and went with them into a room as she remained outside. She could not see what they were doing. She was ushered in to the rom after about 15 minutes and she found about nine people there. All her clothes were on the floor and the two bags were on the table and they had been vandalized. The officers told her that she was under arrest for being in possession of narcotic drugs. She was in shock because for her, she was not in possession of narcotic drugs. She was not however shown the narcotic drugs but she saw the officers touching some plastic bags placed on the table besides her bags.
31. She was not given any opportunity to explain anything or to communicate with her sister or any relative. She was not explained her right to an advocate. The officers confiscated her phone. After interrogation, they returned the clothes into the bags.
32. The appellant said that she was not given any document to sign and she did not witness the weighing of the drugs. They however took her photos and the drugs.
33. They took her to the government chemist where she did not understand what was taking place. She was persuaded to sign some documents promising to release her. She did not understand the contents as they were written in English but she signed all the same.
34. The appellant said that her bags were screened in South Africa and Ethiopia and she was cleared to travel without any hitch.
35. I have considered, examined and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submissions filed by learned counsel for the appellant. The issue for determination by this court is whether the trial court was correct in its finding that the prosecution proved its case against the appellant on the charge of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act to the required standard of proof beyond any reasonable doubt.
36. The offence of trafficking in narcotic drugs is provided for under section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act (hereinafter the Act) as follows;
“Any person who traffics in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable:
a) in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;”
37. It is important to note that this provision is as per the statute at the time but this has since been amended by the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022 (Act No. 4 of 2022) on 21 March 2022].
38. Section 2 of the Narcotic Drugs and Psychotropic Substances Control Act defines trafficking as:
“… the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof…”
39. The Court of Appeal while considering the import of this section in the case of Madline Akoth Barasa & Another v Republic [2007] eKLR held as follows: -
“It is evident from the definition of trafficking that the word is used as a term of art embracing various dealings with narcotic drugs or psychotropic substance. In our view for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking. In addition, and more importantly, the prosecution should at the trial prove by evidence the conduct of an accused person which constitutes trafficking.”
40. There is no dispute that the substance produced in court as exhibit and allegedly recovered wrapped in four cello taped polyethene bags and concealed in a “false bottom” of a black bag belonging to the appellant was heroine, a narcotic drug as per the evidence of the government analyst.
41. In this case, the appellant was charged with trafficking in the narcotic drugs by way of conveying. It was the prosecution’s case that the luggage from which the narcotic drugs were recovered was received from an international flight, Ethiopian Airlines flight ET 322 at the Moi International Airport. This means that it was under conveyance from another country into Kenya. There is evidence that the appellant and she conceded as much that she was travelling from South Africa through Ethiopia to Kenya.
42. There was evidence from the prosecution and the appellant conceded that the black bag in which the prosecution witnesses said they recovered the narcotic drugs was hers. She had travelled with it from South Africa through Ethiopia to Kenya. She said it could not have contained the drugs because it was screened and released for travel both at the South African airport and the Ethiopian airport. Although she said that both her bags were tampered with and the airport officials at Moi International Airport, Mombasa apologized to her, her evidence was that the pink bag (which had no issues) was cut while the black bag was pressed. She did not explain more what she meant by pressed but there was no indication that it had been opened in any way.
43. However, she said that after collecting her bags and raising with the airport officials the issue of them being tampered with, she proceeded for screening where she was asked to and she did open the bags and only clothes were found inside. She closed the bags and she was allowed to proceed to exit the airport.
44. At this point, the appellant made no mention of noticing anything fishy or interference with the inside of the black bag or either of them. If there was any addition or subtraction of any item or weight to the bag that she was not aware of, she would have raised the issue at that moment. She must have been satisfied that it was intact and that is why she closed and left with it. Therefore, it cannot be that up to that point the narcotic drugs could have been inserted in her black bag anywhere along the chain of handling it.
45. The appellant also denied the prosecution evidence that the bag was opened in her presence in the anti-narcotics offices, after she was informed that she was under arrest. She said that the bags were taken into a room and she was only ushered in and found the contents were poured out on the floor and the bags left on the table. She also said she saw the four packages wrapped with cello tape which according to the prosecution witnesses, had the narcotic drugs, on the table beside her bags. In effect therefore her defence was that the narcotic drugs were planted on her at the time when the bags were taken into the room by the anti-narcotic drugs while she was made to remain outside.
46. That contention bears no weight at all against the evidence of six prosecution witnesses PW 1, PW 2, PW 3, PW 4, PW 7 and PW 8 and PW 9 all who were present when her bags were opened and said that they were opened in her presence. The story is even more incredible because it would mean all these officers had some kind of conspiracy against her to plant the heroin upon her in the fifteen minutes that she allegedly remained outside the anti-narcotics offices. She never said for what reason that could have been. There was no indication that any of the officers knew her prior.
47. The manner in which the drugs were concealed in the “false bottom” meant that it would require time and dexterity for someone to open her bag and plant those items there. There is no possibility of this having been done within 15 minutes that she alleges the bags were with the officers in the anti-narcotics office in her absence.
48. I have looked at the photos taken of the scene in the anti-narcotic drugs office. In the first photo (Exh. 14a), the complainant is seen seated on a chair behind an office desk with the two suitcases on top of the table in front of her. The second and third photos (Exh. 14b and 14c) show the beige and black suitcases at close-up view. In both photos, the bags appear closed and intact. There is no indication on the suitcases, that the black one was pressed and the beige one cut in a way that the contents would have been interfered with. The evidence by PW 3, that the photos were of the appellant and her bags and were taken in that office was not challenged. This evidence of the two suitcases being intact in her presence in that office also discounts her contention that she went into the room after the suitcases were opened with her clothes thrown on the floor and the cello tape wrapped polyethene bags containing the narcotic drugs on the table beside the suitcases.
49. The appellant’s defence being that the narcotic drugs were planted upon her while she was outside the anti-narcotics offices (which I have found was not the case), the issue of a break in the chain of custody, as submitted by learned counsel, cannot arise because from that moment, she was with the officers and the drugs throughout until when the government analysist had given his report.
50. I am satisfied that the learned trial magistrate found correctly that there was no evidence of interference with the appellant’s suitcases by way of being pressed and cut at any point before the search. I am also satisfied that he was correct in his finding that the appellant was present when the suitcases were opened in the anti-narcotics offices and when the black suitcase were cut open to reveal the “false bottom” from which the four packages with the narcotic drugs were recovered.
51. The evidence therefore established that the appellant travelled with her suitcases from South Africa, through Ethiopia to Kenya which suitcases, I find, remained intact as there was no evidence of interference until they were handed over to her. From the black suitcase the narcotic drug namely, Heroin was recovered concealed in what PW 8 referred to as a false bottom in four packages wrapped with cello tape.
52. Learned counsel for the appellant submits that there was disparity in the quantity of drugs indicated in Exh. 15 as 5862 grammes while in the weighing certificate the weight was indicated as 5839 grammes. The evidence by PW 8 was that he weighed the narcotic drugs and got a weight of 5389 grammes while the reddish substance weighed 473 grammes, making the total weight 5862 grammes. It is apparent that the figure of 5839 indicated in the weighing certificate was a typographical error of transposing 8 and 3. The correct weight was 5389 grammes as testified by PW 8.
53. I am however not in agreement with the rendition of the learned trial magistrate that the evidence on record revealed a scale of well-choreographed plan right from the country of origin to the final destination in Kenya and that there seem to have been a participation of contingent collaborators where the appellant was one of them. The participation of other people in the scheme is mere supposition. The prosecution did not tender any evidence to lead to that conclusion, even as they charged the appellant “jointly with others not before court.” It could be that there were but it was not the case that the evidence on record revealed the same. Whereas that is not an irregularity that would vitiate a conviction, I think it is better for the prosecution to stick to issues which are clear in the evidence available. The evidence on record is that the appellant carried a bag from which the narcotic drugs were recovered and there was no indication of the involvement of any other person.
54. Learned counsel also submitted that there were inconsistencies in the evidence of some prosecution witnesses. In considering the same I am guided by the case of Philip Nzaka Watu v. Republic, [2016] eKLR where the Court of Appeal held that not all inconsistencies were material and had the effect of rendering evidence unreliable. The court said:
“…However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
55. I am also persuaded to follow the decision in the case of Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 where the Court of Appeal of Tanzania addressed the issue of discrepancies, contradictions and inconsistencies in evidence and concluded as follows:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter….”
56. I have noted a few inconsistencies pointed out by learned counsel for the appellant in the prosecution witnesses’ evidence but in my view, the inconsistencies were minor and immaterial. They did not go to the root of the prosecution case.
57. Consequently, I find that the defence by the appellant that the drugs were planted upon her has no merit and I dismiss it. I am satisfied that the prosecution proved its case against the appellant for the offence of trafficking in narcotic drugs by way of conveyance beyond a reasonable doubt and the learned magistrate’s conviction was proper.
58. In respect to the sentence, the penalty for the offence of trafficking in narcotic drugs as set out in Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act (as it was then) is a fine of KShs. 1 million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, imprisonment for life.
59. On the appeal against sentence, the appellant has complained that the trial magistrate failed to take her mitigation into account. Learned counsel submits that sentence passed by the trial court was excessive as it translates to life imprisonment, going by recent decisions of the Court of Appeal such as that of Ayako v Republic [2023] KECA 1563 (KLR).
60. I am aware that sentencing is at the discretion of the trial court and the appellate court should be slow to interfere. The Court of Appeal in Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR) held thus:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
61. In Caroline Auma Majabu v R [2014] eKLR, the Court of Appeal addressed itself at length on the question whether section 4(a) of the Act provides a mandatory sentence that must be imposed upon conviction and held that section 4(a) of the Act does not provide mandatory sentence. The Court said:
“…the use of the word “liable” in section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act merely gives a likely maximum sentence thereby allowing a measure of discretion to the trial court in imposing sentence with the maximum limit being indicated. It should be noted that sentencing is an exercise of judicial discretion, and therefore provisions which provide for mandatory sentence compromise this discretion, and are the exception rather than the rule., thus where applicable a mandatory sentence must be expressed in clear and ambiguous terms…
In the case of section 4(a) of the Narcotic Drugs & Psychotropic Substance (Control) Act the provision does not contain such clear and ambiguous language with regard to the mandatory sentence. In our view this leaves room for judicial discretion and we would be reluctant to adopt an interpretation that would defeat or muzzle the exercise of such judicial discretion.”
62. The learned trial magistrate in the exercise of his discretion sentenced the appellant to 35 years imprisonment and in addition to pay a fine of KShs 48,501,000/= in default to serve 10 years imprisonment. Whereas the fine of KShs 48,501,000/= was in line with section 4(a) of the Act, I do not understand how the learned magistrate arrived at the default term of 10 years imprisonment. It may be that he was trying to underscore the gravity of the charge as he mentioned narcotic drugs have a negative impact on society. That is correct. But even then, sentencing must accord with the law. Therefore, whereas this court may not vary the fine imposed as it was based on the value of the narcotic drug, which evidence was not challenged, the default sentence thereof must accord with Section 28(2) of the Penal Code. The maximum term of imprisonment in default of that amount of fine under the section is 12 months imprisonment.
63. I am guided by the case of Priscilla Jemutai Kolongei v Republic [2005] KECA 330 (KLR) where the Court of Appeal considering the issue of sentence under section 4(a) of the Act upheld the High Court findings on sentence thus:
“On the question of fine, the law provides for a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater. In my respectful view, the law is clear and categorical: the convict is either fined one million shillings if the street value of the drug or psychotropic substance is less than that amount or the convict is fined three times the street value of the drug or psychotropic substance if its value is greater than one million shillings. The court has no discretion in the matter and the learned trial magistrate misdirected herself in law by holding that she had discretion in the matter. It follows that, in my respectful view, the sentence of Kshs.10 million awarded by the magistrate is unauthorized by law and I must interfere with it in order to bring it within the law. The fine of Kshs.10 million passed against the appellant for the offence of trafficking in narcotic drugs or psychotropic substances, contrary to section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act, 1994 is hereby set aside and substituted with a fine of Kshs.83.4 million, being three times the street value of the drugs or psychotropic substances in compliance with the law. The default sentence of 12 months imprisonment is the maximum permissible in law by virtue of section 28(2) of the Penal code and the same is hereby upheld.”
64. In that case, the market value of the narcotic drug was found to have been KShs 27,800,000/= in 2002.
65. The default sentence of 10 years imprisonment herein is therefore set aside and substituted with a default sentence of 12 months imprisonment.
66. On the sentence of 35 years imprisonment, I agree with learned counsel that recent jurisprudence from the Court of Appeal has said that life imprisonment translates to 30 years imprisonment. The cases of Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR) are examples.
67. In this case, I note that the court did not call for a presentence report. Whereas the same is not mandatory, it is desirable to call for one in order for the court to have a good basis upon which to pass the sentence. The appellant had said in her evidence that she was a mother of three children and without a husband. A pre-sentence report would have assisted the trial court to find out the veracity of what the appellant had said and also the welfare of the children even as she is not Kenyan. Secondly, at times, it is also during such occasions and when the offender is faced with the reality of a lengthy term of imprisonment that they open up to say how they found themselves trafficking drugs. Many times, they are not the barons behind the trade in illicit drugs but mere conduits. Once they are arrested, they are left on their own to face the consequences as the barons identify other victims to prey upon and continue in their illicit trade. In such circumstances, the court must temper justice with mercy.
68. The offence committed was serious and the quantity of drugs conveyed was large. However, in the case of Priscilla Jemutai Kolongei above, the sentence of 18 years imprisonment was sustained by both the High Court and the Court of Appeal where circumstances were almost similar to the present one and where the trafficker was an air hostess but travelling at the time as an ordinary passenger.
69. Consequently, I am persuaded to find that, guided by the above decision, the sentence passed by the trial court was harsh and manifestly excessive. This court ought to and hereby does interfere with the sentence passed by the trial court.
70. In conclusion, I find that the appeal on conviction lacks merit and it is accordingly dismissed. However, the appeal on sentence succeeds and the appellant is sentenced to serve 16 years imprisonment which will run from 14/3/2021 when she was taken into custody and in addition to pay the fine of KShs 48,501,000/- in default to serve 12 months imprisonment.
71. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court on the virtual platform, Teams this 20th day of March 2025 in the presence of:
The appellant in person from Shimo La Tewa Women prison.
Ms Seif for the appellant.
Ms Vallerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia, court assistant.
2. The prosecution presented 9 witnesses before the trial court in support of its case. PW 1, PC Fred Kitili worked at the Moi International Airport Anti-narcotics officer performing drug investigation duties. PW 2, Mathew Ondiri, was a KRA customs officer working as a supervisor at the passenger terminal, Moi International Airport. PW 3, Sgt Benson Ingosi was performing crime scene investigations duties and based at Regional headquarters. PW 4, Cpl Patrick Odhiambo Otieno, was based at the CID, Moi International Airport, Mombasa Anti-Narcotics unit. PW 5, David Ngumbao, was a government analyst based at Government Chemist, Mombasa. PW 6, C.I.P. Elizabeth Lumumba was a valuation officer in the Anti-Narcotics department based at Provincial headquarters, Nairobi. PW 7, I.P. Ali Bashir was at the time based at Mombasa anti-narcotics office. PW 8, Kioko Mutunga, worked with Kenya Airways at customer service to record luggage whose owners have not picked, looking for consignments of customers which have not arrived and responding to customers on any query about their luggage. PW 9, Cpl Mary Mugi, was the investigating officer in this case. At the time, she was based at DCI headquarters Anti-Narcotics unit, Nairobi.
3. The appellant gave sworn evidence in defence and denied that she had committed the offence. She did not call a witness.
4. Upon full hearing of the case, the trial court was satisfied that the prosecution had proved its case against the appellant beyond a reasonable doubt. It found her guilty, convicted her and sentenced her to a fine of KShs 48,501,000/= or serve ten years’ imprisonment and in addition to serve 35 years imprisonment.
5. The appellant was dissatisfied with the trial court’s decision, and she has filed the present appeal based on the grounds outlined in her petition of appeal dated 13/2/2024 as follows:
a. That the magistrate erred in law and fact by disregarding the appellant’s evidence.
b. That the magistrate erred in law and fact by failing to give reasons why the appellant was placed on her defence.
c. That the magistrate erred in law and fact by regarding contradictory evidence of prosecution witnesses that left a lot of doubt in the circumstances.
d. That the magistrate erred in law and fact by failing to consider the gaps in the prosecution’s case created by failure to call crucial witnesses who would have vindicated the appellant.
e. That the magistrate erred in law and fact by failing to take into account the mitigation as given by the appellant.
6. The appellant therefore prays that the appeal be allowed, the judgment quashed and the sentence set aside.
7. The appeal was heard by way of written submissions filed by the appellant but none by the respondent despite being given several opportunities to do so.
8. Learned counsel for appellant submitted all the grounds of appeal together. He submitted that the prosecution failed to discharge its legal burden of proof to the required standard due to insufficient and contradictory evidence.
9. Learned counsel submitted that although PW 2 said that at the first scan of the bags on 12/3/2021 at the Moi International Airport, the black bag showed some peculiar characteristics, no images of the scans were produced in court as exhibits. Yet the same bags had been cleared all the way from Oliver Tambo airport in South Africa through Ethiopia to Moi International Airport in Mombasa. He submitted further that there was an unexplained break in the chain of custody of the appellant’s bags from the time they arrived at the Moi International Airport on 12/3/2021 to the time she collected them on 14/3/2021. He cited the case of Bernard Omondi Odullo v R Cr. App. No. 66 of 2000 to support that submission. However, he did not provide a copy of the decision and I have been unable to find the full decision of the Kenyalaw website.
10. Learned counsel submits that the trial court improperly admitted as exhibit Form F89 (Exh. 13) which was a duplicate yet it was secondary evidence. He supported his submission with the case of In re the Estate of Charles Ndegwa Kiragu alias Ndegwa Kiragu – Deceased [2016] KEHC 6987 (KLR) on the conditions to be satisfied by a party who wishes to rely on secondary evidence.
11. The other submissions relate to inconsistencies in the evidence of some of the witnesses.
12. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
13. This position is recounted in several other decisions for instance in Njoroge v Republic (1987) KLR 19.
14. In summary, the prosecution’s case was that acting on intelligence report that there were people coming through the Moi International Airport with narcotic drugs, PW 7, IP Ali Bashir Oloo who had the mandate to coordinate issues of anti-narcotics in Mombasa briefed police officers at the airport and asked them to be on the alert.
15. PW 1 and PW 4 stationed themselves at the airport reception area on 12/3/2021. PW 2, a customs official who was present at the time said that in fact they were working as a multi-agency team, among them PW 1 and PW 4. An Ethiopian Airline flight from Addis Ababa landed at 12.30 p.m. Luggage from the flight was received and it went through the conveyor belt. PW 1 said that two bags, one beige (Exh. 1a) and the other black (Exh. 1b) each bearing the name Maimuna Amir Jumanne remained on the conveyor belt unclaimed. But according to PW 2, there were a total of 6 bags that remained unclaimed.
16. The two bags bearing the name Maimuna Amir Jumanne went through the scanning machine and PW 2 said that the black bag showed peculiar characteristics in its content. It weighed 42.85Kg. PW 2 completed a notice of goods deposited in customs warehouse (Form F89) (Exh. 2) and the bags were kept in the customs office to await collection by the owner. He said that customers are only allowed to enter the office in company of a customs officer.
17. On 14/3/2021, the appellant arrived at the airport aboard an Ethiopian Airline flight ET 322 and in company of a ground handler Kioko, PW 8, she went to claim for her bag from the customs office. She produced her passport (Exh. 3) which was in the name of Amir Maimuna Jumanne. PW 2 took her to the customs office store and she identified her bags. PW 2 said that she confirmed they were intact and took them. She signed on the duplicate Form F89 (Exh. 13) to confirm that she had taken the bags from the customs offices while they were intact and left with PW 8 to the ground handler’s office.
18. PW 8 said that the two bags kept at the customs office were handed over to him by his colleague Morris Seme when he reported for duty on 12/3/2021 at 5.00 p.m. The bags remained there until 14/3/2021 when the appellant Maimuna Amir who had arrived on an Ethiopian Airline flight No. ET 0322 at around 12.23 p.m. went to him and claimed her luggage that had arrived earlier. He escorted her to the custom’s offices and she picked her luggage and she was referred back to PW 8 for recording. He entered the details in the mishandled baggage register (Exh. 25) where the appellant signed. She confirmed that her luggage was intact. He escorted her to the KRA customs and handed over to them.
19. PW 2 said that when the appellant went bag to them from the ground handler’s office she went to the scanner where PW 2. Her bags were marked “for opening.” She opened the bags and, in the beige/grey bag it was full of clothes while the black bag was half full of clothes. The customs officers completed their work.
20. The anti-narcotics officers came in from that point and asked the appellant to accompany them to their offices. PW 2 accompanied them too.
21. PW 1, PW 2, PW 3, PW 4, PW 7 and PW 9 were all present. The appellant was requested for and surrendered her Tanzanian passport (Exh. 3) to PW 7. The officers informed the appellant of their intention to search her bags. PW 1 removed all the clothes and nothing illegal was found. PW 7 however said that he lifted each of the bags and in spite of the black bag being “empty” it remained unusually heavy. From his experience in dealing with narcotics, he cut open the bottom of the black suitcase using a knife and at the tip of the knife, there was a brownish substance. He then dismantled what he termed “false bottom” and recovered four packages that contained a brownish substance which they suspected to be narcotic drugs, two at the bottom and two others at the top of the suitcase. On top of the four packages was a reddish substance (Exh. 4) which covered them and which, according to PW 7 from his experience, was pepper used to put off sniffer dogs used at the airports. PW 7 prepared an inventory (Exh. 10) of the relevant items recovered. He also prepared a certificate of search (Exh. 16) and all the officers present as well as the appellant signed it.
22. PW 9, Cpl Mary Mugi prepared an Exhibit Memo form (Exh. 17) of the recovered substance. The police officers proceeded to the government chemist with the appellant. PW 7 weighed the substance suspected to be narcotic drugs and got a weight of 5389 grammes while the reddish substance weighed 473 grammes, making the total weight 5862 grammes. He prepared a certificate of weighing (Exh. 11).
23. PW 5, the government analyst took samples of the substances from each of the four cello taped black polythene bags and analyzed the substance therein which were brownish granules and upon subjecting them to analysis, he found that they were narcotic drugs, namely, Heroine. The reddish powdery substance was however found not to be a narcotic drug. He prepared a certificate of sampling (Exh. 12). He also produced the samples he had taken from the substances (Exh. 19M1 to 19M5.
24. PW 3 took photographs of the scene in the anti-narcotics offices at the time the suitcases were opened and also at the government chemist (Exh. 14(a) to 14(l)).
25. PW 6 gave the estimates of the value of the recovered narcotic drugs as KShs 16,167,000/=. She said her estimates were arrived at by using intelligence information from their undercover intelligence officers, the United Nations Office on Drugs and Crime, drug enforcement agency and from recent suspects and interrogated on the recent trends at the time which estimated the value to be KShs 3,000/= per gram making it KShs 16,167,000/= for 5389 grammes.
26. PW 9 had the appellant subsequently charged with the offence.
27. In her defence, the appellant denied that she committed the offence. She said she is a citizen of Tanzania from Zanzibar, Changombe near Dar-es-salaam. She said she doing business of selling charcoal and meat. She has four children and not married. She said she is illiterate but was given a paper to sign at the airport.
28. She was travelling from South Africa where she had gone to visit her sister Suleha Hamis. Her sister gave her two bags of clothes to take to her sister’s friend Hadiya, in Kenya. She travelled on Kenya Airways through Ethiopia where they arrived on 12/3/2021 at around 6.00 a.m. She had a change of flight. Her two bags were screened twice and cleared for travel. She proceeded to the passport area. It was during the Covid 19 period and when her temperature was taken, it was found to be high. She was detained to await clearance by a doctor and so she could not travel. She was tested and found without C19 and cleared to travel on 14/3/2021 at 10.00 a.m. By this time, her luggage had already left Ethiopia to Kenya. She arrived in Kenya at the Moi International Airport on 14/3/2021 at midday.
29. She claimed her two bags and she was asked for her passport and then taken to the customs offices. She was given the two bags and she noticed that the pink bag was cut while the black bag was pressed. She quarreled the officers but they apologized and told her that in case she found anything missing she should register her complaint. The bags were screened and she was asked to open them. They were found to have clothes and she was allowed to go.
30. On her way, she was stopped by two men who said they wanted to conduct further investigations of the bags. One more man came and introduced himself as a police officer. They took her bags and went with them into a room as she remained outside. She could not see what they were doing. She was ushered in to the rom after about 15 minutes and she found about nine people there. All her clothes were on the floor and the two bags were on the table and they had been vandalized. The officers told her that she was under arrest for being in possession of narcotic drugs. She was in shock because for her, she was not in possession of narcotic drugs. She was not however shown the narcotic drugs but she saw the officers touching some plastic bags placed on the table besides her bags.
31. She was not given any opportunity to explain anything or to communicate with her sister or any relative. She was not explained her right to an advocate. The officers confiscated her phone. After interrogation, they returned the clothes into the bags.
32. The appellant said that she was not given any document to sign and she did not witness the weighing of the drugs. They however took her photos and the drugs.
33. They took her to the government chemist where she did not understand what was taking place. She was persuaded to sign some documents promising to release her. She did not understand the contents as they were written in English but she signed all the same.
34. The appellant said that her bags were screened in South Africa and Ethiopia and she was cleared to travel without any hitch.
35. I have considered, examined and re-evaluated the evidence adduced by the prosecution witnesses before the trial court. I have also considered the defence that was put forward by the appellant. I have also considered the grounds of appeal set forth by the appellant and the written submissions filed by learned counsel for the appellant. The issue for determination by this court is whether the trial court was correct in its finding that the prosecution proved its case against the appellant on the charge of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act to the required standard of proof beyond any reasonable doubt.
36. The offence of trafficking in narcotic drugs is provided for under section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act (hereinafter the Act) as follows;
“Any person who traffics in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable:
a) in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;”
37. It is important to note that this provision is as per the statute at the time but this has since been amended by the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022 (Act No. 4 of 2022) on 21 March 2022].
38. Section 2 of the Narcotic Drugs and Psychotropic Substances Control Act defines trafficking as:
“… the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof…”
39. The Court of Appeal while considering the import of this section in the case of Madline Akoth Barasa & Another v Republic [2007] eKLR held as follows: -
“It is evident from the definition of trafficking that the word is used as a term of art embracing various dealings with narcotic drugs or psychotropic substance. In our view for the charge sheet to disclose the offence of trafficking the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking. In addition, and more importantly, the prosecution should at the trial prove by evidence the conduct of an accused person which constitutes trafficking.”
40. There is no dispute that the substance produced in court as exhibit and allegedly recovered wrapped in four cello taped polyethene bags and concealed in a “false bottom” of a black bag belonging to the appellant was heroine, a narcotic drug as per the evidence of the government analyst.
41. In this case, the appellant was charged with trafficking in the narcotic drugs by way of conveying. It was the prosecution’s case that the luggage from which the narcotic drugs were recovered was received from an international flight, Ethiopian Airlines flight ET 322 at the Moi International Airport. This means that it was under conveyance from another country into Kenya. There is evidence that the appellant and she conceded as much that she was travelling from South Africa through Ethiopia to Kenya.
42. There was evidence from the prosecution and the appellant conceded that the black bag in which the prosecution witnesses said they recovered the narcotic drugs was hers. She had travelled with it from South Africa through Ethiopia to Kenya. She said it could not have contained the drugs because it was screened and released for travel both at the South African airport and the Ethiopian airport. Although she said that both her bags were tampered with and the airport officials at Moi International Airport, Mombasa apologized to her, her evidence was that the pink bag (which had no issues) was cut while the black bag was pressed. She did not explain more what she meant by pressed but there was no indication that it had been opened in any way.
43. However, she said that after collecting her bags and raising with the airport officials the issue of them being tampered with, she proceeded for screening where she was asked to and she did open the bags and only clothes were found inside. She closed the bags and she was allowed to proceed to exit the airport.
44. At this point, the appellant made no mention of noticing anything fishy or interference with the inside of the black bag or either of them. If there was any addition or subtraction of any item or weight to the bag that she was not aware of, she would have raised the issue at that moment. She must have been satisfied that it was intact and that is why she closed and left with it. Therefore, it cannot be that up to that point the narcotic drugs could have been inserted in her black bag anywhere along the chain of handling it.
45. The appellant also denied the prosecution evidence that the bag was opened in her presence in the anti-narcotics offices, after she was informed that she was under arrest. She said that the bags were taken into a room and she was only ushered in and found the contents were poured out on the floor and the bags left on the table. She also said she saw the four packages wrapped with cello tape which according to the prosecution witnesses, had the narcotic drugs, on the table beside her bags. In effect therefore her defence was that the narcotic drugs were planted on her at the time when the bags were taken into the room by the anti-narcotic drugs while she was made to remain outside.
46. That contention bears no weight at all against the evidence of six prosecution witnesses PW 1, PW 2, PW 3, PW 4, PW 7 and PW 8 and PW 9 all who were present when her bags were opened and said that they were opened in her presence. The story is even more incredible because it would mean all these officers had some kind of conspiracy against her to plant the heroin upon her in the fifteen minutes that she allegedly remained outside the anti-narcotics offices. She never said for what reason that could have been. There was no indication that any of the officers knew her prior.
47. The manner in which the drugs were concealed in the “false bottom” meant that it would require time and dexterity for someone to open her bag and plant those items there. There is no possibility of this having been done within 15 minutes that she alleges the bags were with the officers in the anti-narcotics office in her absence.
48. I have looked at the photos taken of the scene in the anti-narcotic drugs office. In the first photo (Exh. 14a), the complainant is seen seated on a chair behind an office desk with the two suitcases on top of the table in front of her. The second and third photos (Exh. 14b and 14c) show the beige and black suitcases at close-up view. In both photos, the bags appear closed and intact. There is no indication on the suitcases, that the black one was pressed and the beige one cut in a way that the contents would have been interfered with. The evidence by PW 3, that the photos were of the appellant and her bags and were taken in that office was not challenged. This evidence of the two suitcases being intact in her presence in that office also discounts her contention that she went into the room after the suitcases were opened with her clothes thrown on the floor and the cello tape wrapped polyethene bags containing the narcotic drugs on the table beside the suitcases.
49. The appellant’s defence being that the narcotic drugs were planted upon her while she was outside the anti-narcotics offices (which I have found was not the case), the issue of a break in the chain of custody, as submitted by learned counsel, cannot arise because from that moment, she was with the officers and the drugs throughout until when the government analysist had given his report.
50. I am satisfied that the learned trial magistrate found correctly that there was no evidence of interference with the appellant’s suitcases by way of being pressed and cut at any point before the search. I am also satisfied that he was correct in his finding that the appellant was present when the suitcases were opened in the anti-narcotics offices and when the black suitcase were cut open to reveal the “false bottom” from which the four packages with the narcotic drugs were recovered.
51. The evidence therefore established that the appellant travelled with her suitcases from South Africa, through Ethiopia to Kenya which suitcases, I find, remained intact as there was no evidence of interference until they were handed over to her. From the black suitcase the narcotic drug namely, Heroin was recovered concealed in what PW 8 referred to as a false bottom in four packages wrapped with cello tape.
52. Learned counsel for the appellant submits that there was disparity in the quantity of drugs indicated in Exh. 15 as 5862 grammes while in the weighing certificate the weight was indicated as 5839 grammes. The evidence by PW 8 was that he weighed the narcotic drugs and got a weight of 5389 grammes while the reddish substance weighed 473 grammes, making the total weight 5862 grammes. It is apparent that the figure of 5839 indicated in the weighing certificate was a typographical error of transposing 8 and 3. The correct weight was 5389 grammes as testified by PW 8.
53. I am however not in agreement with the rendition of the learned trial magistrate that the evidence on record revealed a scale of well-choreographed plan right from the country of origin to the final destination in Kenya and that there seem to have been a participation of contingent collaborators where the appellant was one of them. The participation of other people in the scheme is mere supposition. The prosecution did not tender any evidence to lead to that conclusion, even as they charged the appellant “jointly with others not before court.” It could be that there were but it was not the case that the evidence on record revealed the same. Whereas that is not an irregularity that would vitiate a conviction, I think it is better for the prosecution to stick to issues which are clear in the evidence available. The evidence on record is that the appellant carried a bag from which the narcotic drugs were recovered and there was no indication of the involvement of any other person.
54. Learned counsel also submitted that there were inconsistencies in the evidence of some prosecution witnesses. In considering the same I am guided by the case of Philip Nzaka Watu v. Republic, [2016] eKLR where the Court of Appeal held that not all inconsistencies were material and had the effect of rendering evidence unreliable. The court said:
“…However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.
55. I am also persuaded to follow the decision in the case of Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 where the Court of Appeal of Tanzania addressed the issue of discrepancies, contradictions and inconsistencies in evidence and concluded as follows:
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter….”
56. I have noted a few inconsistencies pointed out by learned counsel for the appellant in the prosecution witnesses’ evidence but in my view, the inconsistencies were minor and immaterial. They did not go to the root of the prosecution case.
57. Consequently, I find that the defence by the appellant that the drugs were planted upon her has no merit and I dismiss it. I am satisfied that the prosecution proved its case against the appellant for the offence of trafficking in narcotic drugs by way of conveyance beyond a reasonable doubt and the learned magistrate’s conviction was proper.
58. In respect to the sentence, the penalty for the offence of trafficking in narcotic drugs as set out in Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act (as it was then) is a fine of KShs. 1 million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, imprisonment for life.
59. On the appeal against sentence, the appellant has complained that the trial magistrate failed to take her mitigation into account. Learned counsel submits that sentence passed by the trial court was excessive as it translates to life imprisonment, going by recent decisions of the Court of Appeal such as that of Ayako v Republic [2023] KECA 1563 (KLR).
60. I am aware that sentencing is at the discretion of the trial court and the appellate court should be slow to interfere. The Court of Appeal in Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR) held thus:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
61. In Caroline Auma Majabu v R [2014] eKLR, the Court of Appeal addressed itself at length on the question whether section 4(a) of the Act provides a mandatory sentence that must be imposed upon conviction and held that section 4(a) of the Act does not provide mandatory sentence. The Court said:
“…the use of the word “liable” in section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act merely gives a likely maximum sentence thereby allowing a measure of discretion to the trial court in imposing sentence with the maximum limit being indicated. It should be noted that sentencing is an exercise of judicial discretion, and therefore provisions which provide for mandatory sentence compromise this discretion, and are the exception rather than the rule., thus where applicable a mandatory sentence must be expressed in clear and ambiguous terms…
In the case of section 4(a) of the Narcotic Drugs & Psychotropic Substance (Control) Act the provision does not contain such clear and ambiguous language with regard to the mandatory sentence. In our view this leaves room for judicial discretion and we would be reluctant to adopt an interpretation that would defeat or muzzle the exercise of such judicial discretion.”
62. The learned trial magistrate in the exercise of his discretion sentenced the appellant to 35 years imprisonment and in addition to pay a fine of KShs 48,501,000/= in default to serve 10 years imprisonment. Whereas the fine of KShs 48,501,000/= was in line with section 4(a) of the Act, I do not understand how the learned magistrate arrived at the default term of 10 years imprisonment. It may be that he was trying to underscore the gravity of the charge as he mentioned narcotic drugs have a negative impact on society. That is correct. But even then, sentencing must accord with the law. Therefore, whereas this court may not vary the fine imposed as it was based on the value of the narcotic drug, which evidence was not challenged, the default sentence thereof must accord with Section 28(2) of the Penal Code. The maximum term of imprisonment in default of that amount of fine under the section is 12 months imprisonment.
63. I am guided by the case of Priscilla Jemutai Kolongei v Republic [2005] KECA 330 (KLR) where the Court of Appeal considering the issue of sentence under section 4(a) of the Act upheld the High Court findings on sentence thus:
“On the question of fine, the law provides for a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater. In my respectful view, the law is clear and categorical: the convict is either fined one million shillings if the street value of the drug or psychotropic substance is less than that amount or the convict is fined three times the street value of the drug or psychotropic substance if its value is greater than one million shillings. The court has no discretion in the matter and the learned trial magistrate misdirected herself in law by holding that she had discretion in the matter. It follows that, in my respectful view, the sentence of Kshs.10 million awarded by the magistrate is unauthorized by law and I must interfere with it in order to bring it within the law. The fine of Kshs.10 million passed against the appellant for the offence of trafficking in narcotic drugs or psychotropic substances, contrary to section 4(a) of the Narcotic Drugs and Psychotropic substances (Control) Act, 1994 is hereby set aside and substituted with a fine of Kshs.83.4 million, being three times the street value of the drugs or psychotropic substances in compliance with the law. The default sentence of 12 months imprisonment is the maximum permissible in law by virtue of section 28(2) of the Penal code and the same is hereby upheld.”
64. In that case, the market value of the narcotic drug was found to have been KShs 27,800,000/= in 2002.
65. The default sentence of 10 years imprisonment herein is therefore set aside and substituted with a default sentence of 12 months imprisonment.
66. On the sentence of 35 years imprisonment, I agree with learned counsel that recent jurisprudence from the Court of Appeal has said that life imprisonment translates to 30 years imprisonment. The cases of Ayako v Republic [2023] KECA 1563 (KLR) and MB v Republic [2024] KECA 324 (KLR) are examples.
67. In this case, I note that the court did not call for a presentence report. Whereas the same is not mandatory, it is desirable to call for one in order for the court to have a good basis upon which to pass the sentence. The appellant had said in her evidence that she was a mother of three children and without a husband. A pre-sentence report would have assisted the trial court to find out the veracity of what the appellant had said and also the welfare of the children even as she is not Kenyan. Secondly, at times, it is also during such occasions and when the offender is faced with the reality of a lengthy term of imprisonment that they open up to say how they found themselves trafficking drugs. Many times, they are not the barons behind the trade in illicit drugs but mere conduits. Once they are arrested, they are left on their own to face the consequences as the barons identify other victims to prey upon and continue in their illicit trade. In such circumstances, the court must temper justice with mercy.
68. The offence committed was serious and the quantity of drugs conveyed was large. However, in the case of Priscilla Jemutai Kolongei above, the sentence of 18 years imprisonment was sustained by both the High Court and the Court of Appeal where circumstances were almost similar to the present one and where the trafficker was an air hostess but travelling at the time as an ordinary passenger.
69. Consequently, I am persuaded to find that, guided by the above decision, the sentence passed by the trial court was harsh and manifestly excessive. This court ought to and hereby does interfere with the sentence passed by the trial court.
70. In conclusion, I find that the appeal on conviction lacks merit and it is accordingly dismissed. However, the appeal on sentence succeeds and the appellant is sentenced to serve 16 years imprisonment which will run from 14/3/2021 when she was taken into custody and in addition to pay the fine of KShs 48,501,000/- in default to serve 12 months imprisonment.
71. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court on the virtual platform, Teams this 20th day of March 2025 in the presence of:
The appellant in person from Shimo La Tewa Women prison.
Ms Seif for the appellant.
Ms Vallerie h/b for Ngiri for the respondent.
Johnson h/b for Etropia, court assistant.