Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissed· [2025] KECA 255 (KLR)

Zinab Abdi Farah v Republic

Court of Appeal
21 February 2025
6,148 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld a 15-year drug trafficking sentence, confirming that second appeals only address legal errors, not facts or sentence severity.

What this practically means

#

Executive summary

#
The appellant was convicted by the Chief Magistrate's Court at Shanzu on two counts of trafficking in narcotic drugs contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, after cocaine (303.3 grams) and heroin (76.7 grams) were recovered from her bedroom during a police search at her Solian house in Mombasa on 22nd August 2019. She was sentenced to 25 years' imprisonment on each count concurrent, plus fines; on first appeal Ong'injo, J. upheld the conviction and the fines but reduced the custodial term to 15 years on each count. On second appeal before the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA), the appellant argued that possession was not proved exclusively against her, that the recovery process was compromised by two inventories, a late search certificate and the absence of forensic evidence, and that the sentence failed to reflect her mitigation. The Court restated that a second appeal is confined to matters of law under sections 361(1)(a) and 362(1)(a) of the Criminal Procedure Code, and that concurrent findings of fact by the two courts below would not be disturbed absent want of evidence, misapprehension of evidence or wrong principle. It found the concurrent findings that the search was above board and the drugs were recovered from the appellant's bedroom in her presence to be amply supported. The two inventories were explained as separate records of different officers, evidencing good faith. On sentence, severity being a matter of fact, the Court held the sentence lawful under section 4(a)(i) given the quantities exceeded 100 grams. The appeal was dismissed in its entirety.

Key legal issues

#
01

Whether possession of the narcotics was exclusively proved against the appellant

Holding

Yes - the drugs were recovered from the appellant's bedroom, in her presence, in a house belonging to her, and she was the only adult present

Reasoning

Two facts were undisputed: the house belonged to the appellant and three other persons (a 17-year-old daughter, a 2-year-old child and a house help) were present. The drugs were recovered from her bedroom under the bed and in handbags. Multiple officers gave consistent accounts of where the drugs were found, and the search and recoveries were done in her presence. She never claimed the drugs belonged to her husband. The High Court drew the reasonable presumption of custody in her favour. No forensic evidence was necessary given the direct evidence of recovery.

p. 9
02

Whether the two separate inventories and the timing of the search certificate compromised the recovery

Holding

No - the separate inventories reflected the respective recoveries of different officers and showed good faith; the discrepancies did not affect the overwhelming evidence

Reasoning

'P. Exhibit 5' listed 24 items including the narcotics; 'P. Exhibit 14' listed 13 items excluding the drugs, prepared by a different officer. The Court read no mischief in this, reasoning that each officer simply reported what each recovered. The presence of the two lists did not oust the fact that narcotics were recovered from the appellant's house. The minor discrepancies did not discredit the search or the recovery process.

p. 9
03

Whether the sentence could be interfered with on appeal

Holding

No - severity of sentence is a matter of fact under section 361(1)(a) of the Criminal Procedure Code, and the sentence was lawful under section 4(a)(i) of the Act

Reasoning

On second appeal the Court's mandate on sentence is confined to matters of law and it can only interfere if the sentence is unlawful. Section 4(a)(i) provides for a fine of not less than fifty million shillings or three times the market value, or imprisonment up to fifty years, or both, where the quantity exceeds 100 grams. The trial court's 25-year terms, reduced by the High Court to 15 years each concurrent with fines sustained, were lawful.

p. 10

Legal principles established

#
  • On a second appeal, the Court of Appeal concerns itself only with matters of law and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, a misapprehension of evidence, or wrong principles
  • Severity of sentence is a matter of fact and not a legal issue open for consideration by the Court of Appeal on second appeal
  • The provisions permitting police entry and search without warrant under the National Police Service Act and the Narcotic Drugs Act are not couched in mandatory terms such that failure to obtain a warrant indicates sinister motive or renders the search unlawful
  • Where different police officers recover different items in a search, the preparation of separate inventories by each officer evidences good faith and does not cast doubt on the recovery

Court orders

#
  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and the sentence as substituted by the High Court (15 years' imprisonment on each count concurrent, with fines sustained) remain in force
On appeal from
High Court
Jurisdiction invoked
Second appeal under sections 361(1)(a) and 362(1)(a) of the Criminal Procedure Code, confined to matters of law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Zinab Abdi Farah v Republic", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/255/eng@2025-02-21

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