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MagistrateDismissedCriminal Case No 3805 of 2021· [2024] KEMC 168 (KLR)

Republic v Irungu (Criminal Case 3805 of 2021) [2024] KEMC 168 (KLR)

Chief Magistrate's Court at Nakuru (Criminal)
4 July 2024
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court acquitted a man of drug charges because prosecutors proved plants grew, not that he grew or knew about them.

What this practically means

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Executive summary

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The accused, Samwel Mwangi Irungu, was charged on 2 September 2021 with cultivating prohibited plants contrary to section 6(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994, and possession of narcotic drugs contrary to section 3(1) as read with section 3(2) of the same Act. It was alleged that 78 stems of cannabis sativa valued at Kshs 240,000 were found growing in the middle of his maize plantation at Ngoriga village, Njoro sub-location within Nakuru county, and two rolls of bhang valued at Kshs 60 were found in a geometrical set in a cupboard in his house. The assistant chief, chief, government analyst and a police officer testified for the prosecution. The trial commenced before Hon Y. I. Khatambi, Principal Magistrate; A. P. Ndege, Senior Principal Magistrate, took over on 31 May 2023, and directions under section 200(3) of the Criminal Procedure Code were taken with the accused electing to proceed from where the hearing had reached. The accused gave his defence on 27 May 2024. The court held that the prosecution bore the burden of proof beyond reasonable doubt. On the cultivation charge, it found that the plants growing in a maize plantation, without proof of ownership or occupation of the land, did not establish the accused was the cultivator, and the analyst's report did not establish that the plant material was cannabis as defined (limited to flowering or fruiting tops, excluding seeds and leaves). On the possession charge, the court applied the two-element test of physical control and knowledge, and found that the presence of other occupants (the wife and son) in the house meant the accused's possession was not proved. Under section 215 of the Criminal Procedure Code the charges were dismissed and the accused acquitted on 4 July 2024.

Key legal issues

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01

Cultivation of prohibited plants contrary to section 6(a) NDPSA

Holding

Not proved: plants found growing in a maize plantation do not by themselves establish that the accused was cultivating them, no proof he owned or occupied the land, the analyst did not establish the plant material was cannabis as statutorily defined, and there was no evidence the plants were Cannabis Sativa

Reasoning

The definition of 'cultivate' under section 2 NDPSA requires growing, sowing, nurturing or harvesting by the accused. Merely finding stems growing among maize does not connect the accused to that cultivation. Section 6(b) liability for owners/occupiers was also not proved as ownership of the land was never established. Further, the statutory definition of cannabis restricts criminality to the flowering or fruiting tops excluding seeds and leaves, and the analyst's report did not specify which part of the plant the material came from, leaving open that stems or roots were involved, which are not illegal.

p. 3
02

Possession of narcotic drugs contrary to section 3(1) as read with 3(2) NDPSA

Holding

Not proved: finding two rolls of bhang in a cupboard in the accused's house, which was also occupied by his wife and son, does not establish exclusive physical control or knowledge

Reasoning

Drawing on the Penal Code definition of possession and the authorities of Jean Wanjala Songoi and Peter Mwangi Kariuki, possession comprises physical control plus knowledge of the item's presence and its prohibited character. Since the house had other occupants, the prosecution had to prove the bhang was under the accused's exclusive physical control and that he knew of it; residence alone did not suffice, so the standard of proof beyond reasonable doubt was not met.

p. 4

Legal principles established

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  • The burden of proof in a criminal trial lies on the prosecution and must be discharged beyond reasonable doubt
  • Possession of narcotics requires proof of both physical control and knowledge of the prohibited item

Court orders

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  1. 1.A finding of not guilty entered against the accused
  2. 2.Charges dismissed and the accused acquitted of cultivation of prohibited plants contrary to section 6(a) and possession of narcotic substances contrary to section 3(1) as read with section 3(2) of the NDPSA, pursuant to section 215 of the Criminal Procedure Code

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994sections 2, 3(1), 3(2), 6(a), 6(b), First Schedule
  • Evidence Actsection 111(1)
  • Criminal Procedure Codesections 200(3), 215
  • Penal Codesection 4(a)

Cases cited (2)

  • Jean Wanjala Songoi & Patrick Manyola v Republic
    (2014) eKLR
  • Peter Mwangi Kariuki v Republic
    (2015) eKLR
Jurisdiction invoked
Original criminal jurisdiction under the Criminal Procedure Code (trial of charges under 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 Irungu (Criminal Case 3805 of 2021) [2024] KEMC 168 (KLR)", Case Analysis (2024). Criminal Case No 3805 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/168/eng@2024-07-04

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