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MagistrateDismissedCriminal Case No 886 of 2016· [2017] KEMC 134 (KLR)

Republic v Gitome (Criminal Case 886 of 2016) [2017] KEMC 134 (KLR)

Principal Magistrate's Court at Nyahururu
24 January 2017
ANAloyce-Peter Ndege
1,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court acquitted a woman of drug possession because the prosecution could not prove the seized plant material was the illegal part of the cannabis plant.

What this practically means

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Executive summary

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This is a first-instance ruling on whether the defendant, Magret Muthoni Gitome, charged with being in possession of cannabis sativa contrary to section 3(1) as read with section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994, should be called upon to make her defence. The prosecution, through three police witnesses, established that the defendant was arrested on 10.04.2016 at Muthengera, Laikipia County, with one roll of a substance later confirmed by forensic analysis to be cannabis, with the exhibit, exhibit memo and government analyst's report produced as exhibits. The court framed the sole issue as whether the prosecution had established a prima facie case under section 211 of the Criminal Procedure Code. Applying the restrictive definition of cannabis in section 2 of the NDPCA - limited to the flowering or fruiting tops of the cannabis plant excluding seeds and leaves not accompanied by tops - the court found the prosecution evidence did not exclude the possibility that the material came from seeds, roots, stem or leaves, which are not illegalised, and the government analyst did not clarify the part of the plant from which the material came. The court applied Republic v Kennedy Otieno & 6 Others (1998) eKLR, holding that an accused need not fill gaps in the prosecution case and may remain silent. Finding no prima facie case, the court entered a finding of not guilty and, under section 210 of the Criminal Procedure Code, dismissed the charges and acquitted the defendant, ordering the Kshs. 15,000 cash bail refunded to the depositor.

Key legal issues

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01

Whether the substance recovered was cannabis within the meaning of section 2 of the NDPCA

Holding

The prosecution failed to prove that the plant material was cannabis as defined, since it did not exclude that the material was seeds, leaves, stem or roots which are not illegalised

Reasoning

The court held that section 2 of the NDPCA restricts the illegal substance to the flowering or fruiting tops of the cannabis plant excluding seeds and leaves when not accompanied by tops. The government analyst did not clarify which part of the plant the material came from, so the prosecution failed to meet the beyond reasonable doubt standard.

p. 2
02

Whether a prima facie case was disclosed to require the defendant to make her defence

Holding

No prima facie case was disclosed; calling upon the accused to answer would amount to calling on her to fill gaps in the prosecution case, and no conviction could ensue even if she gave a defence

Reasoning

Applying Republic v Kennedy Otieno & 6 Others, the court reasoned that an accused has a right to remain silent at the close of the prosecution case, is under no obligation to prove innocence, and the gaps in the prosecution case should not be cured by the accused. Accordingly the court entered a finding of not guilty and acquitted under section 210 of the Criminal Procedure Code.

p. 3

Legal principles established

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  • The definition of cannabis in the NDPCA is restrictive and the prosecution must prove that the seized plant material is from the flowering or fruiting tops of the cannabis plant from which the resin has not been extracted
  • At the close of the prosecution case, an accused has a right to remain silent and the burden of proving guilt beyond reasonable doubt lies on the prosecution

Court orders

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  1. 1.Pursuant to section 210 of the Criminal Procedure Code, the charges were dismissed and the defendant acquitted of being in possession of cannabis sativa contrary to section 3(1) as read with section 3(2) of the NDPCA
  2. 2.The cash bail deposited to be refunded back to the depositor

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substances Control Actsection 2
  • Narcotic Drugs and Psychotropic Substances Control Actsection 3(1), 3(2), 3(2)(a) and First Schedule
  • Criminal Procedure Codesection 210
  • Criminal Procedure Codesection 211
  • Constitution of KenyaArticle 157(6)

Cases cited (1)

  • Republic v Kennedy Otieno & 6 Others
    (1998) eKLR
Jurisdiction invoked
Criminal jurisdiction under the Criminal Procedure Code (section 210 and section 211) and the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Gitome (Criminal Case 886 of 2016) [2017] KEMC 134 (KLR)", Case Analysis (2017). Criminal Case No 886 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/134/eng@2017-01-24

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