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MagistrateOtherCriminal Case No. E009 of 2026· [2026] KEMC 534 (KLR)

Republic v Barasa & another (Criminal Case E009 of 2026) [2026] KEMC 534 (KLR)

Malaba Senior Principal Magistrates Court
20 August 2026
AOA.Z. Ogange
2,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Two men accused of possessing cannabis in Malaba walked free because the prosecution's case rested on suspicion and gaps, not solid proof of possession.

What this practically means

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Executive summary

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The two accused persons were charged with being in possession of narcotic drugs (bhang, approximately three kilograms in brooms and eight rolls) contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances Control Act. After initially pleading guilty they changed their pleas, pleaded not guilty and were released on cash bail of Kshs. 5,000 each. The prosecution called four witnesses: an Assistant Chief who acted on a tip-off, a community policing member, the investigating officer, and a state witness (Faustine Okumu) present at the scene. The sole issue was whether a prima facie case had been established to warrant the accused being put on their defence. The court found material inconsistencies in the prosecution narrative: on who was present and arrested, whether anyone was smoking cannabis (PW2 recanted, PW3 saw no smoking), and the unexplained selective release of one person. A state witness corroborated the defence allegation that one Steve, who was never called, planted the cannabis during a ransacking. The court held that mere smell of cannabis does not prove possession, that ownership of premises or friendship cannot substitute for proof of knowledge, control or dominion, and that suspicion however strong cannot take the place of evidence. The unexplained failure to call Steve left a serious evidentiary gap. Holding that the deficiencies could not be left for the accused to explain, the court acquitted both accused under Section 210 of the Criminal Procedure Code, ordered refund of cash bail, and directed retention and subsequent destruction of the exhibits absent an appeal.

Key legal issues

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01

Whether a prima facie case of possession of narcotic drugs was established

Holding

No prima facie case; the prosecution failed to establish actual or constructive possession and the inconsistencies went to the core of the case

Reasoning

The essential elements required evidence of possession and nexus between the accused and the cannabis. Witnesses contradicted each other on who was present, who was arrested, and whether anyone was smoking. A state witness corroborated the defence claim of planting by one Steve, who was never called. The inconsistencies were material, not minor, and the prosecution failed to demonstrate knowledge, control or dominion over the substance.

p. 5
02

Effect of unexplained failure to call a material witness (Steve)

Holding

The unexplained failure left a serious evidentiary gap because Steve's conduct was directly connected to the recovery

Reasoning

Steve was not a peripheral character; allegations that he ransacked, took money and planted the cannabis were corroborated by PW4, a state witness. Since the case rested substantially on a disputed recovery, his absence deprived the court of an explanation of the recovery circumstances.

p. 5

Legal principles established

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  • Mere smell of cannabis does not establish possession by any particular accused person
  • Ownership of premises or friendship cannot by itself prove possession; suspicion cannot replace evidence
  • Unexplained failure to call a material witness on a disputed recovery leaves a serious evidentiary gap

Court orders

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  1. 1.The accused persons are acquitted under Section 210 of the Criminal Procedure Code
  2. 2.Cash Bail shall be refunded to the depositors upon proper identification
  3. 3.The cannabis and rizzler produced as exhibits shall be retained pending expiry of the fourteen-day period for lodging an appeal, and in the absence of an appeal shall be destroyed
Jurisdiction invoked
Criminal jurisdiction under the Criminal Procedure Code over charges under the Narcotic Drugs and Psychotropic Substances Control Act

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 Barasa & another (Criminal Case E009 of 2026) [2026] KEMC 534 (KLR)", Case Analysis (2026). Criminal Case No. E009 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/534/eng@2026-08-20

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