Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCriminal Appeal No. 138 & 139 of 2011· [2013] KECA 489 (KLR)

Republic v Rehema Kahindi Kalume & another [2013] KECA 489 (KLR)

Court of Appeal of Kenya
21 June 2013
EGE.M. GithinjiASAsike-MakhandiaFSF. Sichale
1,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal quashed drug trafficking convictions, ruling that living where drugs are found is not proof of possession.

What this practically means

#

Executive summary

#
The Court of Appeal at Malindi (Githinji, Makhandia and Sichale JJ.A), in consolidated Criminal Appeals Nos. 138 and 139 of 2011, allowed the appeals of Rehema Kahindi Kalume and Kadze Kahindi Kalume against convictions for trafficking in narcotic drugs by storing. The appellants, charged with storing 11 sachets of heroin and 30 Rohypnol tablets valued at Kshs. 2,000 found in a house they occupied but did not own, were convicted by the Senior Principal Magistrate's court at Malindi, sentenced to a fine of Kshs. 1,000,000 and life imprisonment, and their appeals to the High Court (Omondi J) were dismissed. The Court of Appeal held that 'storing' under section 2(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act, read ujusdem generis with the other trafficking modes, connotes fairly large quantities for sale or distribution, so the small quantities in issue did not amount to storing. Adopting the Penal Code definition of possession, the Court further found no evidence of the appellants' knowledge or benefit, holding the courts below misdirected themselves in imposing liability merely because the appellants lived in the house - the offence is not one of strict liability. On sentencing, the Court held that the life imprisonment term in section 4(a) is not mandatory. The Court quashed the convictions, set aside the sentences, and ordered the appellants' release unless otherwise lawfully held. No costs order was made.

Key legal issues

#
01

Meaning of 'storing' as a mode of trafficking

Holding

Small quantities of drugs (11 sachets of heroin and 30 Rohypnol tablets valued at Kshs. 2,000) kept in a private house do not constitute storing under the Act.

Reasoning

The Act does not define storing. The court consulted Black's Law Dictionary and read 'storing' ujusdem generis with the preceding modes of trafficking (importation, manufacture, buying, sale, distribution). Read in context, storing implies warehousing fairly large quantities for sale or distribution, which explains the severe penalty. Quantities worth Kshs. 2,000 in a private house cannot amount to storing.

p. 3
02

Possession of narcotics as a precondition to trafficking by storing

Holding

Possession, adopting section 4 of the Penal Code, requires knowledge and custody or benefit; mere presence in the house did not prove the appellants possessed the drugs.

Reasoning

The Act does not define possession, so the court adopted the Penal Code definition covering actual possession, custody of another, and things kept for one's use or benefit. The key police witnesses did not know the owner of the house; the appellants, credible young rural women claiming to be employees, had no shown knowledge or benefit. The courts below erred in inferring liability from residence alone.

p. 3
03

Mandatory nature of the life imprisonment sentence

Holding

The life imprisonment term in section 4(a) is not mandatory; courts retain sentencing discretion.

Reasoning

The trial Magistrate appeared to treat life imprisonment as mandatory, which would be irrational for storing drugs worth Kshs. 2,000. Section 4(a) uses 'shall be guilty of an offence and liable' rather than a mandating formulation. Relying on Opoya v Uganda, the court held the sentence is discretionary and a court may impose any appropriate sentence other than life imprisonment.

p. 4

Legal principles established

#
  • Storing as a mode of trafficking under the Narcotic Drugs Act, read ujusdem generis with the other modes, connotes fairly large quantities of drugs for sale or distribution; small personal quantities do not amount to storing.
  • Occupation of premises where drugs are found does not by itself establish possession; knowledge and benefit must be proved - the offence is not one of strict liability.
  • The life imprisonment term in section 4(a) of the Narcotic Drugs Act is not mandatory; the court retains discretion to impose an appropriate lesser sentence.

Court orders

#
  1. 1.Appeal of each appellant allowed
  2. 2.Convictions quashed
  3. 3.Respective sentences set aside
  4. 4.Each appellant at liberty forthwith unless otherwise lawfully held

Authorities

#

Legislation

  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 4(1)
  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 2(1)
  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 3(1)
  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 4(a)
  • Penal Codesection 4

Cases cited (1)

  • Opoya v Uganda
    [1967] EA 752
On appeal from
High Court of Kenya at Malindi
H.C.CR.A. No. 100 & 101 of 2010
Jurisdiction invoked
First appellate jurisdiction under the Criminal Procedure Code over appeals from the High Court exercising original appellate jurisdiction in criminal appeals

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Rehema Kahindi Kalume & another [2013] KECA 489 (KLR)", Case Analysis (2013). Criminal Appeal No. 138 & 139 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/489/eng@2013-06-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.