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MagistrateDismissedNot stated in the judgment (Criminal Case, Bura/Hola)· [2020] KEMC 18 (KLR)

Republic v Kirora (Criminal Case 101 of 2018) [2020] KEMC 18 (KLR)

Principal Magistrate's Court (Magistrates' Court, criminal jurisdiction)
16 January 2020
ANAloyce Peter Ndege
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendant, a water vendor cyclist at Bura trading centre, was arrested on 21 August 2018 on suspicion of stealing rice. A search of his house by three police officers yielded no rice exhibits, but PW2 allegedly recovered 15 rolls of plant substances from a black jacket hanging in the house; these were confirmed by the Government Analyst to be cannabis. The defendant was charged with being in possession of a narcotic substance contrary to section 3(1) as read with section 3(2)(a) of the NDPCA. He was unrepresented and remained in remand throughout, denying the charge and alleging that police confiscated his money, phones and shoes. The court identified two issues: whether the defendant was found in possession of the exhibit, and whether it was cannabis within section 2 of the NDPCA. The court found the prosecution case riddled with doubt: PW3 acted simultaneously as eye-witness, arresting, recovery and investigating officer; his exhibit memo described recovery of the rolls from the defendant's person during a stop and search, contradicting the oral evidence of recovery from a jacket in the house; the jacket itself was never produced. Further, section 2's restrictive definition of cannabis limits the offence to flowering or fruiting tops excluding seeds and leaves when not accompanied by tops, and the evidence showed only leaves. The prosecution failed to prove the case beyond reasonable doubt, and the defendant was acquitted under section 215 of the CPC and ordered set at liberty forthwith.

Key legal issues

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01

Possession of the narcotic

Holding

Not proved - serious inconsistency between the exhibit memo and the evidence on where the cannabis was recovered, compounded by failure to produce the jacket

Reasoning

PW3 acted as eye-witness, arresting, recovery and investigating officer, and his exhibit memo described recovery of the rolls from the defendant's person, contradicting the oral evidence that they were recovered from a jacket hanged in his house. The court found this inconsistency fatal in light of the defendant's denial that anything was recovered from his house, and the failure to avail the jacket supported an inference that the recovery did not occur as alleged.

p. 3
02

Whether the substance was cannabis as defined

Holding

Not proved - the evidence showed leaves and did not exclude seeds and leaves not accompanied by flowering or fruiting tops

Reasoning

Section 2 of the NDPCA defines cannabis restrictively, limited to flowering or fruiting tops from which resin has not been extracted, excluding seeds and leaves when not accompanied by tops. The prosecution's evidence described the rolls as leaves and did not establish the presence of flowering or fruiting tops, so possession of cannabis as defined was not proved beyond reasonable doubt.

p. 3

Legal principles established

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  • Not all parts of the cannabis plant are criminalised; the prosecution must prove the substance comprised flowering or fruiting tops excluding seeds and leaves not accompanied by tops
  • Material inconsistencies between the exhibit memo and the oral prosecution evidence create reasonable doubt benefiting the accused

Court orders

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  1. 1.The defendant is acquitted under section 215 of the CPC of the offence of Being in Possession of Cannabis Sativa c/s 3(1) as read with 3(2)(a) of the NDPCA
  2. 2.The defendant should be set at liberty forthwith unless otherwise lawfully held
Jurisdiction invoked
Criminal jurisdiction under the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 and the Criminal Procedure Code; prosecution conducted by the DPP pursuant to Article 157(6) of the Constitution

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 Kirora (Criminal Case 101 of 2018) [2020] KEMC 18 (KLR)", Case Analysis (2020). Not stated in the judgment (Criminal Case, Bura/Hola). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/18/eng@2020-01-16

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