ALI BIN ALI & SHEE OBO MOHAMED vs REPUBLIC [2001] KECA 333 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that ship captains who deliberately ignore obvious red flags legally 'know' about drugs on board — ignorance is no defence.
What this practically means
#Executive summary
#Key legal issues
#Whether wilful blindness amounts to actual knowledge of the narcotic for the offence of trafficking
Yes. The two captains, unlike their crew, deliberately shut their eyes to the circumstances of the voyage - the night undertaking, the huge payment, the high-seas transfer, the off-course journey and the unauthorised merchandise - and that deliberate blindness is treated in law as actual knowledge.
The court adopted the first appellate judge's finding that the crew had no knowledge but the captains 'deliberately shut their eyes to the facts of the situation'. It catalogued the suspicious circumstances the captains ignored, including the Shs.150,000 payment, the illegal high-seas transfer between Pemba and Kenya, the unauthorised passengers and the intent to evade duty. The first appellant had conceded in his statement that he discovered the cargo was bhang when loading. The court held that such deliberate shutting of the eyes was, in the eyes of the law, actual knowledge, making the convictions safe.
Burden of proof of the defence of lack of knowledge
The burden of proving lack of knowledge as a defence lies on the accused, by virtue of section 68 of the Act, and the appellants discharged no such burden.
Lack of knowledge was the only defence pressed on appeal. Section 68 provides that the prosecution need not negative any licence, authority, exception or defence; the burden of proving such matter rests on the person seeking to avail himself of it. The court found nothing to show the appellants discharged that burden; on the contrary, a careful scrutiny of the evidence as a whole satisfied it that they had actual knowledge in the eyes of the law.
Whether the sentences could be disturbed on second appeal
No. On a second appeal no appeal lies against sentence unless the sentence is illegal; the sentences of 25 and 20 years with fines of Shs.500,000 were heavy but within the prescribed limits and not illegal.
The court reiterated the settled limitation on second appeals: sentence may only be challenged if illegal. The first appellant was sentenced to 25 years' jail with a fine of Shs.500,000 and the second to 20 years with a fine of Shs.500,000. Although heavy, both were within the prescribed statutory limits, so the court found nothing illegal and dismissed the appeals against sentence.
Legal principles established
#- Deliberately shutting one's eyes to the facts of a situation (wilful blindness) constitutes actual knowledge in the eyes of the law for the offence of trafficking in a narcotic drug.
- Under section 68 of the Narcotic Drugs and Psychotropic Substances (Control) Act, the burden of proving the defence of lack of knowledge (or any other exception or defence) rests on the accused person seeking to avail himself of it; the prosecution need not negative it.
- On a second appeal to the Court of Appeal, no appeal lies against sentence except where the sentence is illegal.
Court orders
#- 1.The appellants' appeals against conviction are dismissed and their convictions upheld
- 2.The appeals against sentence are also dismissed
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. No. 48 to 57 of 1997
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the criminal appellate framework; on sentence, 'on a second appeal, no appeal lies except if the sentence is illegal'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ALI BIN ALI & SHEE OBO MOHAMED vs REPUBLIC [2001] KECA 333 (KLR)", Case Analysis (2001). Criminal Appeal No. 107 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/333/eng@2001-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.