Republic v Wanjiru (Criminal Case E3801 of 2021) [2024] KEMC 151 (KLR)
The bottom line
#A Nakuru court acquitted a woman of drug trafficking and illegal alcohol charges because police evidence failed to link her to the items or prove any sale.
What this practically means
#Executive summary
#Key legal issues
#Trafficking in narcotics under section 4(a) NDPSCA
Not proved: the accused was not shown to be in possession (physical control plus knowledge) of the cannabis, and the analyst did not identify which part of the cannabis plant the material came from, since not all parts are criminalised.
Trafficking is a term of art embracing various dealings including storing. Possession requires physical control and knowledge. The accused lived in a rented plot with many houses; investigation did not confirm she occupied the house or lived alone; the initial suspect was her mother. The definition of cannabis in section 2 is restrictive (flowering or fruiting tops, excluding seeds and leaves not accompanied by tops), and the analyst did not clarify which part of the plant was found. Proof beyond reasonable doubt was therefore not attained.
Selling alcoholic drinks not conforming to prescribed standards under section 32(1)(2) ADCA
Not proved: no act of sale was evidenced.
The chang'aa was found in jerrycans in the house while the accused sat outside. The ADCA definition of 'sell' covers barter, offering or exposing for sale, supply for pecuniary benefit or for commercial gain. No evidence showed any sale, exchange or supply of the chang'aa to any person, so the offence was not established.
Selling alcoholic drinks without a licence under sections 37 and 62 ADCA
Not proved: since no sale was shown, the licensing issue does not arise.
The search was conducted while the accused was outside the house, so she was not selling to anybody. Without proof of sale, the question of a licence does not arise, and this count also fails.
Effect of failure to produce the inventory marked for identification
An inventory prepared but only marked for identification and never produced as an exhibit has little or no evidential value.
Relying on the Kenneth Nyaga Mwige case, the court noted the inventory was prepared and signed by the accused but only marked (Pm F1 4) and never formally produced as an exhibit. A document marked for identification only becomes part of the record when formally produced; until then it has very little, if any, evidential value, which undermined the prosecution's exhibits.
Legal principles established
#- The burden of proving a criminal case lies with the prosecution and never shifts to the accused unless the law specifically provides otherwise; the standard is proof beyond reasonable doubt.
- Possession in criminal law requires both physical control of the item and knowledge of the item.
- A document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness.
Court orders
#- 1.The charges against the accused person are dismissed and she is acquitted of all the offences pursuant to section 215 of the Criminal Procedure Code
- 2.The surety is discharged
- 3.Any security deposited on behalf of the accused to be released to the depositor
- Jurisdiction invoked
- Original criminal jurisdiction under the Criminal Procedure Code; prosecution under Article 157(6) of the Constitution (DPP's state powers of prosecution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Wanjiru (Criminal Case E3801 of 2021) [2024] KEMC 151 (KLR)", Case Analysis (2024). Criminal Case No E3801 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/151/eng@2024-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.