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MagistrateDismissedNot stated in the judgment (criminal charge of Dealing in Alcoholic Drink Without a Licence)· [2020] KEMC 24 (KLR)

Republic v Gichira (Criminal Case 84 of 2018) [2020] KEMC 24 (KLR)

Principal Magistrate's Court at Hola
4 August 2020
ALAloyce-Peter-Ndege
1,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out an alcohol charge because police failed to prepare a mandatory inventory of seized drinks at the scene.

What this practically means

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Executive summary

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The defendant, Waweru Gichira, was arrested on 28 July 2018 at his homestead at Village 7, Bura, by police officers on patrol who acted on a tip-off after seeing people flee the compound. A yellow jerrican containing illicit alcohol (makole) was recovered, and on 31 July 2018 he was charged with Dealing in Alcoholic Drink Without a Licence contrary to section 7(1)(b) as read with section 62 of the Alcoholic Drinks Control Act. He remained in custody until April 2019 when released on a Kshs. 40,000 bond. The prosecution called three witnesses, including the investigating officer who sent a sample to the government analyst, which confirmed the liquid was traditional liquor. The defendant was unrepresented throughout. At the close of the prosecution case the court considered whether a prima facie case had been established under section 211 of the Criminal Procedure Code. The court held that the police, although authorised officers entitled to enter the homestead, breached the mandatory requirement of section 60(1) of the ADCA to prepare a full inventory of seized drinks, signed by both the recovering officer and the suspect. Without an inventory there was no proof the drink was recovered from the defendant and it could have been planted. The exhibits were refused admission, rendering the charge invalid ab initio and the prosecution evidence insufficient. Applying Republic v Kennedy Otieno & 6 Others (1998) eKLR, the court found no prima facie case, held the defendant entitled to remain silent, dismissed the charges and acquitted him under section 210 of the Criminal Procedure Code. The exhibits were ordered destroyed after the 14-day appeal period lapsed with no DPP appeal.

Key legal issues

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01

Effect of non-compliance with section 60(1) ADCA inventory requirement

Holding

The exhibits were seized in violation of mandatory legal requirements and are refused admission and reliance upon; without them the prosecution evidence falls short of the required standard

Reasoning

The police officers were authorised officers under section 50(3)(b) and lawfully entered the homestead, but were bound to prepare a full inventory at the time of seizure under section 60(1) ADCA. No inventory was made. Because an inventory is normally signed by both the recovering officer and the suspect, its absence means there is no proof the drink was recovered from the defendant's homestead; it could have been planted. The officers themselves thereby breached the Act.

p. 3
02

Whether a prima facie case was disclosed to put the defendant on his defence

Holding

No prima facie case was disclosed; the defendant was entitled to remain silent and the charge was dismissed under section 210 of the Criminal Procedure Code

Reasoning

Applying the prima facie test in Republic v Kennedy Otieno & 6 Others - evidence upon which the court would convict if no explanation is given - and given the exclusion of the exhibits, the prosecution bore and failed to discharge the burden of proving guilt beyond reasonable doubt. The court found the prosecution's evidence inconsistent and unproved, entered a finding of not guilty and acquitted the defendant without calling for his defence.

p. 3

Legal principles established

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  • Failure to comply with the mandatory inventory requirement in section 60(1) of the ADCA renders the resulting charge invalid ab initio and the seized exhibits inadmissible
  • At the close of the prosecution case, the accused has a right to remain silent where the prosecution has not proved its case beyond reasonable doubt

Court orders

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  1. 1.The charges against the defendant are dismissed and he is acquitted under section 210 of the Criminal Procedure Code
  2. 2.A finding of not guilty entered against the defendant
  3. 3.The alcoholic drinks produced as exhibits be destroyed once the 14 days appeal period lapses and there is no indication of an appeal from the DPP
  4. 4.Judgment dated, signed and delivered at Hola in open court on 4th August 2020
Jurisdiction invoked
Criminal jurisdiction under the Criminal Procedure Code (sections 210 and 211) and the Alcoholic Drinks Control Act, No. 4 of 2010; prosecution by the DPP under 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 Gichira (Criminal Case 84 of 2018) [2020] KEMC 24 (KLR)", Case Analysis (2020). Not stated in the judgment (criminal charge of Dealing in Alcoholic Drink Without a Licence). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/24/eng@2020-08-04

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