Republic v Musembi (Criminal Case E009 of 2025) [2025] KEMC 374 (KLR)

PW5, an experienced gazette government analyst, received the 7 rolls, 325 stems and one broom of dry plant material with an exhibit memo form dated 9 January 2025. He applied the Blue B Salt Test, UV Spectroscopy and confirmatory HPLC testing, all of which identified the materials as cannabis. The accused did not challenge this in cross-examination and the report was produced as P. Exh. 3.

The intelligence informants were not called as witnesses, but the court held circumstantial evidence sufficient where it forms a complete and unbroken chain excluding any reasonable hypothesis. The plantation was found on family land where the accused resided, local administrators had long investigated him, he fled and hid under his mother's bed, did not point to any other family member as the cultivator, and did not cross-examine on grudge or involvement of others. The court applied section 119 of the Evidence Act to presume the fact.

The minor discrepancy in PW2's testimony (11 rolls versus 7 in his statement) was resolved on cross-examination and, following Philip Nzaka Watu v Republic, minor discrepancies from human recollection do not destroy credibility. Flight from the room presupposed knowledge and control; under section 4 of the Penal Code possession extends to things in a place for one's use or benefit. The court noted the evidence pointed to trafficking but the accused benefited from the possession charge.

The court took judicial note of the mismatch between the evidence suggesting dealing in narcotics and the charge framed as simple possession, remarking that the benefit of the discrepancy accrued to the accused. This is an observation rather than a basis for the conviction.