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MagistrateDismissedNot stated in judgment (criminal case, Bungoma)· [2026] KEMC 700 (KLR)

Republic v Hassan (Criminal Case E084 of 2026) [2026] KEMC 700 (KLR)

Chief Magistrate's Court (Subordinate Court), Bungoma
6 May 2026
TOT. O. Omono
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court acquitted a man of drug possession because police failed to produce CCTV footage, a signed inventory, or independent witnesses.

What this practically means

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Executive summary

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The Accused Person, Ali Hassan, was charged with being in possession of 2,800 grams of cannabis sativa contrary to section 3(1) as read with section 3(2)(A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022, arising from an arrest at Oldrex area, Bungoma South Sub-County on 15th January 2026. Three police officers testified that the Accused hid in a canteen carrying a sack containing twenty brooms of bhang, was arrested, signed an inventory at the police station, and that a government analyst report confirmed the substance was bhang. The Accused, testifying on oath, denied possession, stating he was arrested while walking to look for casual work and that officers planted the bhang on him at the police station. He demanded CCTV footage of his arrival at the station. The investigating officer conceded CCTV coverage existed but claimed the footage could not be retrieved due to limited one-month storage, supported only by a letter from the OCS and no expert evidence. The court held the prosecution proved the substance was bhang but failed to prove possession beyond reasonable doubt: no signed inventory was produced, no civilian witnesses (including the canteen owner) were called, and the CCTV explanation was implausible for a security installation. Invoking the 'blue code of silence' as explained by the Court of Appeal in Titus Ngamau Musila Katitu v Republic, the court found the evidentiary gaps would likely have yielded exculpatory evidence. The Accused was acquitted under section 215 of the Criminal Procedure Code and set at liberty unless otherwise lawfully held. Judgment was delivered at Bungoma on 6th May 2026 by Senior Resident Magistrate T. O. Omono.

Key legal issues

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01

Proof of possession of bhang beyond reasonable doubt

Holding

The prosecution failed to prove that the Accused Person was in possession of the bhang; the failure to produce CCTV footage, a signed inventory, and civilian witnesses cast reasonable doubt.

Reasoning

The court accepted that the substance was bhang but found the contested issue was possession. The defence asserted the bhang was planted at the police station. The prosecution's failure to produce the CCTV footage (unconvincingly explained as storage limits with no expert evidence), the absence of a signed inventory, and the failure to call the canteen owner or any civilian witness, together with the 'blue code of silence', raised reasonable doubt that had to be resolved in the Accused's favour.

p. 8

Legal principles established

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  • Possession of a narcotic may be actual or constructive, and the prosecution must prove possession and that the substance is listed under the Act
  • Where the defence demands CCTV footage early in the trial and the prosecution acknowledges it existed, the prosecution is obliged to preserve and produce such evidence

Court orders

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  1. 1.The Accused Person is acquitted under section 215 of the Criminal Procedure Code of the offence of being in possession of bhang contrary to section 3 (1) as read with section 3 (2)(A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022
  2. 2.The Accused Person is set at liberty unless otherwise lawfully held

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substances (Control Amendment) Actsection 3(1) as read with section 3(2)(a)
  • Penal Codesection 4 (definition of possession)
  • Criminal Procedure Codesection 215

Cases cited (3)

  • Kimani v Republic
    Criminal Appeal E007 of 2021) [2022] KEHC 16205 (KLR
  • Hussein V R
    (1980) KLR 139
  • Titus Ngamau Musila Katitu v Republic
    [2020] eKLR
Jurisdiction invoked
First-instance criminal trial under the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022 and the Criminal Procedure Code

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 Hassan (Criminal Case E084 of 2026) [2026] KEMC 700 (KLR)", Case Analysis (2026). Not stated in judgment (criminal case, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/700/eng@2026-05-06

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