Republic v Issa (Criminal Case E012 of 2026) [2026] KEMC 273 (KLR)
The bottom line
#A Lamu court convicted a man of drug trafficking simply for storing bhang and diazepam, confirming you don't need to be caught selling to be guilty in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether possession and storage of suspected narcotics amounts to trafficking under section 2 of the Act
The court held that keeping the narcotics in an orange bag constituted storage, which is a form of trafficking under section 2 of the Act; the absence of evidence that the substances were for personal consumption reinforced the trafficking inference, and items such as a razor blade, side plate and spoon suggested repackaging for sale.
Section 2 of the Act defines trafficking to include storing. The prosecution's evidence, corroborated by all three witnesses, established that the accused carried the bag containing cannabis and diazepam. The accused's failure to call Fawaz and Yusuf, who he said were with him, weighed against his denial. The quantities and packing items indicated intent to distribute rather than personal consumption.
Whether the substances were proved to be narcotic drugs
The government analyst's report dated 23rd March 2026 confirmed the substances were cannabis and diazepam, narcotic drugs under the Act, and the accused did not challenge the report.
The samples (Pexh 2 and 3) were submitted to the government analyst, whose report found them to be cannabis and diazepam respectively, both narcotic drugs under the Act. The accused offered no challenge to the report, so the third issue was resolved in the affirmative.
Whether the accused's failure to call witnesses (Fawaz and Yusuf) affected the weight of his defence
The court drew an adverse inference from the accused's deliberate failure to call the two persons he said were with him, finding he feared they would confirm possession.
The accused admitted being with Fawaz and Yusuf but claimed nothing was recovered from him. The court reasoned that nothing would have been easier than calling them to confirm his assertion if he were not in possession. His deliberate failure to do so inferred possession and fear of confirmation. The prosecution's corroborated evidence therefore outweighed the defence's mere denials.
Legal principles established
#- Trafficking under section 2 of the NDPS Act includes storing a narcotic drug, and possession coupled with storing suffices to establish trafficking even without proof of sale.
Court orders
#- 1.The accused person is convicted on the sole count of trafficking in narcotic drugs under section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, conviction entered under Section 215 of the CPC
- Jurisdiction invoked
- Original criminal jurisdiction under the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994, section 4(a)(ii), and the Criminal Procedure Code (Section 215)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Issa (Criminal Case E012 of 2026) [2026] KEMC 273 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/273/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.