Being an appeal against both conviction and sentence in the judgement dated 13/8/2025 at Wamunyu law court by Hon. P.E Nabwana (SRM) on the following grounds:
1. That the trial magistrate erred in matters of law and facts by failing to find that the prosecution failed to prove the charges beyond reasonable doubts.
2. That the trial magistrate erred in matters of law and facts by failing to find that the prosecution evidence was marred with a lot of contradictions and inconsistencies that did not warrant conviction.
3. That the trial magistrate erred in matters of law and facts by failing to critically analyze the thrilling and cogent defence that not only exonerated but distanced the accused from the charges herein.
4. That the trial magistrate erred in law and facts by failing to find that the key witnesses were not credible and their evidence was of questionable integrity.
5. That I pray to be furnished with the trial court proceedings (file) to enable me adduce more amended grounds of appeal.
Brief facts
The Appellant was charged with an offence of cultivating cannabis contrary to section 6(a) as read with section 6(b) of the Narcotics Drugs and Psychotropic Substances Control Act No. 4 of 1994.
The particulars are that on the 18th day of June 2023 at Itikwi village Kaitha sub location, Wamunyu location in Mwala sub county within Machakos county was found having cultivated prohibited crop namely bhang (cannabis sativa) to wit 327 bhang plants, 98 brooms of bhang and three kilograms (3kgs) of bhang unprocessed all being of estimated street value of Kshs. 1.2 million (one million, two hundred thousand Kenya shillings) in contravention of the said Act.
The Appellant plead not guilty and matter proceeded to full trial. The Prosecution called six (6) witnesses to prove its case. The Appellant was convicted and sentenced to a fine on Kshs. 3,600,000/= and in default to serve six (6) years imprisonment.
Prosecution case
PW1 (Sgt. Joseph Muragu) and PW2 (Sgt. Mathias Yativo) testified that on 18th June 2023, acting on information that the appellant was cultivating cannabis near River Athi, they proceeded with other officers (including the area Assistant Chief, PW3) to the appellant’s home. They arrested him. According to PW1 and PW2, the appellant led them to a farm that was difficult to access inside the bush. On the higher side of the land were miraa (or maize/beans according to some accounts); on the lower side were cannabis plants. They uprooted 327 stems (some tall, some short, some cut), recovered 98 cannabis brooms hanging to dry in gunny bags, and approximately 3–4 kg of unprocessed cannabis in a sack.
PW3 (David Soso, Assistant Chief) stated that he had earlier received information from Nyumba Kumi elders on 17th March 2023 that the appellant was cultivating cannabis. He investigated, confirmed it, and directed the police. He maintained that the portion with cannabis belonged to the appellant though other portions of the land had been leased.
PW4 (Stephen Tukei, Government Chemist) analyzed the exhibits (327 plants with roots weighing 150 kg and a gunny bag weighing 4 kg). Using UV-visible spectroscopy and Fast Blue B Salt Test, he confirmed the exhibits were cannabis sativa, a prohibited plant under the Act. He produced the analyst’s report (P.Exh. 1) and the exhibit memo.
PW5 (Cpl. Simon Chemwetich) escorted the exhibits to the Government Chemist and confirmed the recovery of the 327 plants and 98 brooms. Photographs of the scene and the recovered exhibits were also produced.
On cross-examination, the officers maintained that the appellant led them to the farm, that nothing was recovered from the house itself, and that the mother (who was unwell) stated the appellant had requested a portion of land for miraa farming and was unaware of the cannabis.
Defence case
The appellant (DW1) denied the charge. He stated he is a veterinary officer, has no farm of his own, and that his parents are the farmers who use paid labourers. He claimed a grudge with the Assistant Chief. On the material day police came to his home, handcuffed him, and took him to a farm where officers and the sub-chief were already photographing plants. He denied leading them there and denied ownership of the land with cannabis. He pointed out that the investigating officer failed to produce any land ownership documents or surveyor’s report.
DW2 (Felix Muteti Musau), a neighbour, stated that the land along the river where the plants were found does not belong to the appellant’s family; it is near their farm but not on it, and portions had been leased (including previously to a Maasai).
Appellant submissions
On failure to prove their case beyond reasonable doubt, the appellant submits first if the officers had already divided themselves into two groups, one to the farm and another to arrest the appellant, in critical analysis, is it true that the appellant was the one who led them to the farm? Secondly, they found that the land that had maize crops on the higher side and on lower side Cannabis. Why was the appellant taken to Cannabis crops and not to the Maize? Why did the PW1, not explain what made him believe the farm belonged to the accused? The Assistant-Chief PW3 Mr. Soso averred in court that he received the information on 17/03/2023 from Nyumba Kumi elders that Munyao was planting cannabis. He gave information and directed officers where he could be found.
The arresting officer, PW2 Mathias Yativo, contradicted the Assistant chief’s evidence and said they got information on 18/6/2023. The evidence lack consistency.
Ndungu Kimanyi vs. Republic [1979] KLR 282
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore, an unreliable witness which makes it unsafe to accept his evidence”
On failure to call key witnesses to testify, the appellant states that PW1 as the investigating officer, had the duty to call the Nyumba Kumi chair person who was adversely mentioned in this case to have reported that the accused planted the cannabis crops. Why did he not procure him to clear the doubts that the accused was the only one and none other who was the owner of the land and the cannabis? Also, the mother of the appellant was also important to have recorded and adduced their evidence in court pertaining the ownership of the land suspected to be owned by the appellant herein.
Daniel Kipyegon Ng'eno v Republic [2018] EKLR
“The unexplained failure by a party to give evidence or call a witness or tender certain documents may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case. The failure to call a witness or tender documents can allow evidence that might have been contradicted by such witness or document to be more readily accepted. Further, where an inference is open from the facts proved, the absence of the witness or documents may be taken into account as a circumstance in favour of the drawing of the inference. But the absence of a witness or document cannot be used to make up any deficiency in the evidence. Thus, it cannot be used to support an inference that is not otherwise sustained by the evidence. The rule cannot fill gaps in the evidence or convert conjecture and suspicion to inference.”
On failure to link the appellant with the alleged charges, it is clear that the land claimed to have been planted with cannabis did not belong to the appellant herein.
DW1 testified that the investigating officer (PW5) who investigated the case did not do any investigation. He did not bring a report from the land’s office or a surveyor’s office to determine the ownership of the land. Dw2 again, averred that there was no tangible evidence that the land belonged to the appellant herein.
On sentencing, the appellant submits that the pre-sentence report by the probation officer was not considered. The community, family and the probation officer had deemed the appellant a well-behaved person, person who has had never been in conflict with law, only for the trial magistrate to go ahead convicting and sentencing him 6 years’ imprisonment, without considering even the medical report of his health conditions. In 2022 he had been diagnosed with a mental disorder at Machakos level 5 hospital.
Respondent submissions
On cultivating cannabis as a prohibited plant. The respondent states that PWI is a police officer. On 18" June 2023 at around 2:00hrs officers were on patrol and they had information the Appellant was planting narcotic crop at the River. He and other officers went to the farm where the Appellant lived with his parents. While testifying he relied on the actual recovered crops present in court and photographs taken at the scene.
PW2 corroborated the evidence of PW1. He further stated the farm was inside the bush and it was difficult to reach the parcel of land. PW3, assistant chief, stated once he found out that the Appellant was planting cannabis he reported to the police. PW4 was the government chemist. While relying on his report PExt. 1
PW4 stated that he examined the exhibits availed to him and found the exhibits to be cannabis which is listed under the Narcotic Drugs and Psychotropic Substances Control Act of 1994. In cross examination he confirmed that they tested the whole lot of plants and that the police officers brought all the plants.
Witnesses PW1, PW2 and PW5, all state that they uprooted, the cannabis from the Appellant’s farm. The prohibited plant was being grown in the farm. There were also 98 pieces of cannabis brooms and unprocessed cannabis were in sacks. There are also photographs to support the evidence that the said cannabis was cultivated in the Appellant’s land. There is sufficient evidence to prove that the cannabis the prohibited plant was cultivated.
On identity and the farm was in the Appellant’s control, the witnesses stated they received information that the Appellant was planting cannabis. The Appellant was arrested at his parent’s home. The Appellant was arrested and he led them to the farm. The Appellant was able to take the witnesses to where the prohibited plant was planted. Thus he was fully aware where the said plant was in the farm, which the witnesses noted was difficult to access.
On the defense, the Appellant denied the allegations and stated that the land with the cultivated cannabis was not his. He also stated that he did not lead the police officers to the piece of land that the cannabis was planted. DW2 did not add value to the defence case as he did not bring any evidence that would have rebutted the prosecution case.
On whether the sentence was harsh, in mitigation, the Appellant informed the court that he was a parent of one 2-year-old child and the bread winner at home and was a care giver to his ailing mother. The Appellant prayed for leniency and a non-custodial sentence. The Trial Court called for a probation report which recommended for a non-custodial sentence. The Prosecution noted the amount involved was huge and urged the court to abide by the law and grant a custodial sentence.
Issues
1. Whether the prosecution proved the charge beyond reasonable doubt.
2. Whether the sentence imposed was excessive.
Analysis
Being a first appellate court, I am guided by the principle in Okeno v Republic [1972] EA 32 that I must subject the entire evidence to a fresh and exhaustive examination, weigh conflicting evidence, and draw my own conclusions while making allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
Whether the prosecution proved the charge beyond reasonable doubt
Section 6(a) and (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act provides:
“Any person who—
(a) cultivates any prohibited plant; or
(b) being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of the cultivation, gathering or production of any prohibited plant, shall be guilty of an offence and liable to a fine of two hundred and fifty thousand shillings or three times the market value of the prohibited plant, whichever is the greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment.”
“Cultivate” is defined in section 2 to include growing, sowing, nurturing, tending or harvesting any part of the plant. Cannabis is a prohibited plant under the Third Schedule.
The Government Chemist’s evidence (PW4) is unchallenged and conclusively established that the recovered material was cannabis sativa. The quantity was 327 plants with roots, 98 brooms and approximately 3 to 4 kg. Also, the manner of recovery, plants growing on the land, brooms hanging to dry prove cultivation.
The main issue is whether the appellant cultivated the plants or was the occupier/person concerned in the management of the premises. The prosecution evidence establishes that: Police Officers received specific information naming the appellant. He was arrested at the home he shared with his parents.
According to PW1, PW2 and PW5, he led them to the difficult-to-access farm where the plants were growing. Further, the mother informed the officers that the appellant had requested a portion of the land for miraa farming; and The Assistant Chief (PW3) independently confirmed through Nyumba Kumi that the appellant was cultivating on that portion.
The defence witnesses claim that the land was leased to third parties (including a Maasai) was not supported by any lease agreement, witness from the alleged lessees, or documentary proof. DW2’s evidence that the land was near but not on the appellant’s family land was unsubstantiated and did not displace the prosecution evidence of the appellant’s knowledge and control of the cannabis farm.
On the alleged contradictions especially on the date of information about cannabis in the farm; March versus June. Who led the police to the farm, appellant or Assistant Chief? Whether the officers were divided into two groups where one went to the side with maize and other to the cannabis side of the farm.
I am guided by Ndungu Kimanyi v Republic [1979] KLR 282 that a witness whose evidence creates an impression of unreliability should not be relied upon.
However, the discrepancies here are minor and do not go to the root of the case. The core narrative of recovery of a large quantity of cannabis from a farm to which the appellant was linked by information, his own conduct in leading the officers, and the mother’s statement remains consistent across PW1, PW2, PW3 and PW5.
On failure to call the Nyumba Kumi elders or the mother as witnesses, the principle in Bukenya & Others v Uganda [1972] EA 549 is that the prosecution must call all material witnesses; where the evidence is barely adequate, an adverse inference may be drawn.
However, Section 143 of the Evidence Act provides that no particular number of witnesses is required.
The evidence already on record was sufficient and coherent. The failure to call those witnesses did not create a fatal gap of evidence.
The defence of a grudge with the Assistant Chief and the claim that the appellant is a veterinary officer with no farming history remain unsubstantiated. No documentary proof of veterinary practice or of any grudge was produced. The trial court correctly analyzed and rejected the defence as not raising a reasonable doubt.
I am satisfied that the prosecution proved beyond reasonable doubt that the appellant cultivated the prohibited plants, Cannabis, and managed the farm.
Sentence
The trial court imposed a fine of Kshs. 3,600,000/= (exactly three times the stated market value of Kshs. 1,200,000/=) or in default six years’ imprisonment. This is within the statutory maximum under section 6 of the Act.
An appellate court interferes with sentence only where the trial court acted on a wrong principle, overlooked a material factor, or imposed a sentence that is manifestly excessive (see Judiciary Sentencing Policy Guidelines).
The appellant argued that his mitigation was not considered. The trial court called for a probation report which recommended a non-custodial sentence and noted the appellant was a first offender, a parent, and caregiver to an ailing mother, with a reported mental health history. The prosecution urged a custodial sentence in view of the large quantity of the cannabis.
Considering the mitigating factors and the probation recommendation for non-custodial sentence, I hereby reduced the sentence to a fine of Kshs 300,000 in default 2 years imprisonment.
READ AND PUBLISHED IN THE CTS THIS 9TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANTSSS
1. That the trial magistrate erred in matters of law and facts by failing to find that the prosecution failed to prove the charges beyond reasonable doubts.
2. That the trial magistrate erred in matters of law and facts by failing to find that the prosecution evidence was marred with a lot of contradictions and inconsistencies that did not warrant conviction.
3. That the trial magistrate erred in matters of law and facts by failing to critically analyze the thrilling and cogent defence that not only exonerated but distanced the accused from the charges herein.
4. That the trial magistrate erred in law and facts by failing to find that the key witnesses were not credible and their evidence was of questionable integrity.
5. That I pray to be furnished with the trial court proceedings (file) to enable me adduce more amended grounds of appeal.
Brief facts
The Appellant was charged with an offence of cultivating cannabis contrary to section 6(a) as read with section 6(b) of the Narcotics Drugs and Psychotropic Substances Control Act No. 4 of 1994.
The particulars are that on the 18th day of June 2023 at Itikwi village Kaitha sub location, Wamunyu location in Mwala sub county within Machakos county was found having cultivated prohibited crop namely bhang (cannabis sativa) to wit 327 bhang plants, 98 brooms of bhang and three kilograms (3kgs) of bhang unprocessed all being of estimated street value of Kshs. 1.2 million (one million, two hundred thousand Kenya shillings) in contravention of the said Act.
The Appellant plead not guilty and matter proceeded to full trial. The Prosecution called six (6) witnesses to prove its case. The Appellant was convicted and sentenced to a fine on Kshs. 3,600,000/= and in default to serve six (6) years imprisonment.
Prosecution case
PW1 (Sgt. Joseph Muragu) and PW2 (Sgt. Mathias Yativo) testified that on 18th June 2023, acting on information that the appellant was cultivating cannabis near River Athi, they proceeded with other officers (including the area Assistant Chief, PW3) to the appellant’s home. They arrested him. According to PW1 and PW2, the appellant led them to a farm that was difficult to access inside the bush. On the higher side of the land were miraa (or maize/beans according to some accounts); on the lower side were cannabis plants. They uprooted 327 stems (some tall, some short, some cut), recovered 98 cannabis brooms hanging to dry in gunny bags, and approximately 3–4 kg of unprocessed cannabis in a sack.
PW3 (David Soso, Assistant Chief) stated that he had earlier received information from Nyumba Kumi elders on 17th March 2023 that the appellant was cultivating cannabis. He investigated, confirmed it, and directed the police. He maintained that the portion with cannabis belonged to the appellant though other portions of the land had been leased.
PW4 (Stephen Tukei, Government Chemist) analyzed the exhibits (327 plants with roots weighing 150 kg and a gunny bag weighing 4 kg). Using UV-visible spectroscopy and Fast Blue B Salt Test, he confirmed the exhibits were cannabis sativa, a prohibited plant under the Act. He produced the analyst’s report (P.Exh. 1) and the exhibit memo.
PW5 (Cpl. Simon Chemwetich) escorted the exhibits to the Government Chemist and confirmed the recovery of the 327 plants and 98 brooms. Photographs of the scene and the recovered exhibits were also produced.
On cross-examination, the officers maintained that the appellant led them to the farm, that nothing was recovered from the house itself, and that the mother (who was unwell) stated the appellant had requested a portion of land for miraa farming and was unaware of the cannabis.
Defence case
The appellant (DW1) denied the charge. He stated he is a veterinary officer, has no farm of his own, and that his parents are the farmers who use paid labourers. He claimed a grudge with the Assistant Chief. On the material day police came to his home, handcuffed him, and took him to a farm where officers and the sub-chief were already photographing plants. He denied leading them there and denied ownership of the land with cannabis. He pointed out that the investigating officer failed to produce any land ownership documents or surveyor’s report.
DW2 (Felix Muteti Musau), a neighbour, stated that the land along the river where the plants were found does not belong to the appellant’s family; it is near their farm but not on it, and portions had been leased (including previously to a Maasai).
Appellant submissions
On failure to prove their case beyond reasonable doubt, the appellant submits first if the officers had already divided themselves into two groups, one to the farm and another to arrest the appellant, in critical analysis, is it true that the appellant was the one who led them to the farm? Secondly, they found that the land that had maize crops on the higher side and on lower side Cannabis. Why was the appellant taken to Cannabis crops and not to the Maize? Why did the PW1, not explain what made him believe the farm belonged to the accused? The Assistant-Chief PW3 Mr. Soso averred in court that he received the information on 17/03/2023 from Nyumba Kumi elders that Munyao was planting cannabis. He gave information and directed officers where he could be found.
The arresting officer, PW2 Mathias Yativo, contradicted the Assistant chief’s evidence and said they got information on 18/6/2023. The evidence lack consistency.
Ndungu Kimanyi vs. Republic [1979] KLR 282
“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore, an unreliable witness which makes it unsafe to accept his evidence”
On failure to call key witnesses to testify, the appellant states that PW1 as the investigating officer, had the duty to call the Nyumba Kumi chair person who was adversely mentioned in this case to have reported that the accused planted the cannabis crops. Why did he not procure him to clear the doubts that the accused was the only one and none other who was the owner of the land and the cannabis? Also, the mother of the appellant was also important to have recorded and adduced their evidence in court pertaining the ownership of the land suspected to be owned by the appellant herein.
Daniel Kipyegon Ng'eno v Republic [2018] EKLR
“The unexplained failure by a party to give evidence or call a witness or tender certain documents may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case. The failure to call a witness or tender documents can allow evidence that might have been contradicted by such witness or document to be more readily accepted. Further, where an inference is open from the facts proved, the absence of the witness or documents may be taken into account as a circumstance in favour of the drawing of the inference. But the absence of a witness or document cannot be used to make up any deficiency in the evidence. Thus, it cannot be used to support an inference that is not otherwise sustained by the evidence. The rule cannot fill gaps in the evidence or convert conjecture and suspicion to inference.”
On failure to link the appellant with the alleged charges, it is clear that the land claimed to have been planted with cannabis did not belong to the appellant herein.
DW1 testified that the investigating officer (PW5) who investigated the case did not do any investigation. He did not bring a report from the land’s office or a surveyor’s office to determine the ownership of the land. Dw2 again, averred that there was no tangible evidence that the land belonged to the appellant herein.
On sentencing, the appellant submits that the pre-sentence report by the probation officer was not considered. The community, family and the probation officer had deemed the appellant a well-behaved person, person who has had never been in conflict with law, only for the trial magistrate to go ahead convicting and sentencing him 6 years’ imprisonment, without considering even the medical report of his health conditions. In 2022 he had been diagnosed with a mental disorder at Machakos level 5 hospital.
Respondent submissions
On cultivating cannabis as a prohibited plant. The respondent states that PWI is a police officer. On 18" June 2023 at around 2:00hrs officers were on patrol and they had information the Appellant was planting narcotic crop at the River. He and other officers went to the farm where the Appellant lived with his parents. While testifying he relied on the actual recovered crops present in court and photographs taken at the scene.
PW2 corroborated the evidence of PW1. He further stated the farm was inside the bush and it was difficult to reach the parcel of land. PW3, assistant chief, stated once he found out that the Appellant was planting cannabis he reported to the police. PW4 was the government chemist. While relying on his report PExt. 1
PW4 stated that he examined the exhibits availed to him and found the exhibits to be cannabis which is listed under the Narcotic Drugs and Psychotropic Substances Control Act of 1994. In cross examination he confirmed that they tested the whole lot of plants and that the police officers brought all the plants.
Witnesses PW1, PW2 and PW5, all state that they uprooted, the cannabis from the Appellant’s farm. The prohibited plant was being grown in the farm. There were also 98 pieces of cannabis brooms and unprocessed cannabis were in sacks. There are also photographs to support the evidence that the said cannabis was cultivated in the Appellant’s land. There is sufficient evidence to prove that the cannabis the prohibited plant was cultivated.
On identity and the farm was in the Appellant’s control, the witnesses stated they received information that the Appellant was planting cannabis. The Appellant was arrested at his parent’s home. The Appellant was arrested and he led them to the farm. The Appellant was able to take the witnesses to where the prohibited plant was planted. Thus he was fully aware where the said plant was in the farm, which the witnesses noted was difficult to access.
On the defense, the Appellant denied the allegations and stated that the land with the cultivated cannabis was not his. He also stated that he did not lead the police officers to the piece of land that the cannabis was planted. DW2 did not add value to the defence case as he did not bring any evidence that would have rebutted the prosecution case.
On whether the sentence was harsh, in mitigation, the Appellant informed the court that he was a parent of one 2-year-old child and the bread winner at home and was a care giver to his ailing mother. The Appellant prayed for leniency and a non-custodial sentence. The Trial Court called for a probation report which recommended for a non-custodial sentence. The Prosecution noted the amount involved was huge and urged the court to abide by the law and grant a custodial sentence.
Issues
1. Whether the prosecution proved the charge beyond reasonable doubt.
2. Whether the sentence imposed was excessive.
Analysis
Being a first appellate court, I am guided by the principle in Okeno v Republic [1972] EA 32 that I must subject the entire evidence to a fresh and exhaustive examination, weigh conflicting evidence, and draw my own conclusions while making allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
Whether the prosecution proved the charge beyond reasonable doubt
Section 6(a) and (b) of the Narcotic Drugs and Psychotropic Substances (Control) Act provides:
“Any person who—
(a) cultivates any prohibited plant; or
(b) being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of the cultivation, gathering or production of any prohibited plant, shall be guilty of an offence and liable to a fine of two hundred and fifty thousand shillings or three times the market value of the prohibited plant, whichever is the greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment.”
“Cultivate” is defined in section 2 to include growing, sowing, nurturing, tending or harvesting any part of the plant. Cannabis is a prohibited plant under the Third Schedule.
The Government Chemist’s evidence (PW4) is unchallenged and conclusively established that the recovered material was cannabis sativa. The quantity was 327 plants with roots, 98 brooms and approximately 3 to 4 kg. Also, the manner of recovery, plants growing on the land, brooms hanging to dry prove cultivation.
The main issue is whether the appellant cultivated the plants or was the occupier/person concerned in the management of the premises. The prosecution evidence establishes that: Police Officers received specific information naming the appellant. He was arrested at the home he shared with his parents.
According to PW1, PW2 and PW5, he led them to the difficult-to-access farm where the plants were growing. Further, the mother informed the officers that the appellant had requested a portion of the land for miraa farming; and The Assistant Chief (PW3) independently confirmed through Nyumba Kumi that the appellant was cultivating on that portion.
The defence witnesses claim that the land was leased to third parties (including a Maasai) was not supported by any lease agreement, witness from the alleged lessees, or documentary proof. DW2’s evidence that the land was near but not on the appellant’s family land was unsubstantiated and did not displace the prosecution evidence of the appellant’s knowledge and control of the cannabis farm.
On the alleged contradictions especially on the date of information about cannabis in the farm; March versus June. Who led the police to the farm, appellant or Assistant Chief? Whether the officers were divided into two groups where one went to the side with maize and other to the cannabis side of the farm.
I am guided by Ndungu Kimanyi v Republic [1979] KLR 282 that a witness whose evidence creates an impression of unreliability should not be relied upon.
However, the discrepancies here are minor and do not go to the root of the case. The core narrative of recovery of a large quantity of cannabis from a farm to which the appellant was linked by information, his own conduct in leading the officers, and the mother’s statement remains consistent across PW1, PW2, PW3 and PW5.
On failure to call the Nyumba Kumi elders or the mother as witnesses, the principle in Bukenya & Others v Uganda [1972] EA 549 is that the prosecution must call all material witnesses; where the evidence is barely adequate, an adverse inference may be drawn.
However, Section 143 of the Evidence Act provides that no particular number of witnesses is required.
The evidence already on record was sufficient and coherent. The failure to call those witnesses did not create a fatal gap of evidence.
The defence of a grudge with the Assistant Chief and the claim that the appellant is a veterinary officer with no farming history remain unsubstantiated. No documentary proof of veterinary practice or of any grudge was produced. The trial court correctly analyzed and rejected the defence as not raising a reasonable doubt.
I am satisfied that the prosecution proved beyond reasonable doubt that the appellant cultivated the prohibited plants, Cannabis, and managed the farm.
Sentence
The trial court imposed a fine of Kshs. 3,600,000/= (exactly three times the stated market value of Kshs. 1,200,000/=) or in default six years’ imprisonment. This is within the statutory maximum under section 6 of the Act.
An appellate court interferes with sentence only where the trial court acted on a wrong principle, overlooked a material factor, or imposed a sentence that is manifestly excessive (see Judiciary Sentencing Policy Guidelines).
The appellant argued that his mitigation was not considered. The trial court called for a probation report which recommended a non-custodial sentence and noted the appellant was a first offender, a parent, and caregiver to an ailing mother, with a reported mental health history. The prosecution urged a custodial sentence in view of the large quantity of the cannabis.
Considering the mitigating factors and the probation recommendation for non-custodial sentence, I hereby reduced the sentence to a fine of Kshs 300,000 in default 2 years imprisonment.
READ AND PUBLISHED IN THE CTS THIS 9TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELANT
BEFORE HON JOYCE GANDANI, JUDGE HIGH COURT
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANTSSS