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3. PW2 gave similar evidence to that of PW1.The two ocers returned to the police station at about 6.45pm and handed over the 2 polythene bags containing the our like substances to Inspector Walter Ongaga (DW5). DW5 kept the exhibit in overnight safe custody. The following day he handed them over to Roseline Opondo (PW4). She is a police ocer attached to the Anti-Narcotics Police Unit, Busia. She collected the 2 black paper bags with our like substances, prepared an exhibit memo form and took the exhibits for analysis at the Government Chemist. 4. There, the our-like substances were tested by Richard Kimutai Langat (PW3), a government analyst based at the Government Chemist, Kisumu. He came to the conclusion that the white and yellow our like powders contained diacetylmorphine, the scientic name for heroin, a narcotic drug. 5. Upon the close of the prosecution’s case, the appellant was put to his defence. However, on January 20, 2015, the appellant, through counsel, applied for the recall of PW3, an application opposed by the State. The trial court upheld the objection and rejected the application. Apparently upset with the rejection, the appellant chose not to give any evidence in defence. 6. It was on the basis of that evidence, which we have abridged, that the trial court convicted the appellant and imposed a rather curious sentence, a ne of Kshs. 20,000,000 and in default to serve 20 years’ imprisonment. Curious because, even after observing that, “this is a serious oence for which the law provides a strict sentence” he imposed, not just an unlawful sentence, but one that was obviously much more lenient than that prescribed by statute. On the rst appeal, the unlawful sentence was set aside by Korir J (as he then was) who, after arming the conviction imposed a sentence of 20 years’ imprisonment, and a ne of Kshs. 3,000,000 and in default to serve one year imprisonment to run upon completion of the 20 years’ imprisonment. The sentence imposed by the High Court being in consonance with the penalty then provided in section 4 (a) of the Act: 4. Penalty for tracking in narcotic drugs, Any person who tracks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance, shall be guilty of an oence and liable— (a) 7. in respect of any narcotic drug or psychotropic substance to a ne of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life; or… In this second appeal, the grievances before us are that the trial and rst appellate court erred in law by failing to appreciate that the charge sheet was incurably defective; by failing to hold that the appellant’s rights under articles 25 (c ) and 50 (2) (b) and (j) of the Constitution were violated; by failing to appreciate that the exhibits were not properly quantied and valued; by failing to appreciate that the sentence imposed was against the weight of evidence adduced; by failing to appreciate that the evidence of recovery was not proved beyond reasonable doubt and by failing to appreciate that the sentence is unconstitutional due to its mandatory nature. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1247/eng@2022-11-04 2

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8. As we turn to consider and determine each ground of appeal, we are alive to our circumscribed mandate imposed by section 361 (1)(a) of the Criminal Procedure Code as a second appellate court. Of this mandate, this Court in Njoroge vs Republic [1982] KLR 388 stated: “ On a second appeal, the Court of Appeal is only concerned with points of law. On such an appeal, the court was bound by the concurrent ndings of fact made by the lower courts, unless these ndings were shown not to be based on evidence.” 9. The appellant urged us to nd that the charge sheet was defective for failing to specify the alleged manner of tracking. In this regard, the appellant cited the decision of this court in Mohamed Famau Bakari v Republic [2016] eKLR in which it held: “ The main complaint in this appeal is that the charge as framed did not specify the manner in which the appellant was tracking in drugs, since under section 2(1) of the Act, tracking can entail the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution; and that the charge sheet ought to have identied one of the foregoing transactions that the appellant was allegedly engaged in at the time of his arrest. We agree that since tracking under the law involves 12 distinct activities, the specic transaction or transactions a suspect is accused of must be specied in the charge. As part of fair trial the suspect must know the case against him.” 10. In rebuttal, Ms Vitsengwa, learned prosecution counsel, submitted that both courts below were in agreement that the manner of tracking was clear from the evidence that the appellant was transporting the narcotics and the kind of activity he was engaged in at the time of arrest was not in dispute, that is, he was travelling on a motorbike towards Uganda. Counsel submitted that although transportation is not part of the denition of tracking under section 2(1) of the Act, the nature of the transaction the appellant was engaged in when he was arrested is found in the words ‘illicit trac’ in section 2. That the appellant was not prejudiced by the charge as drawn since there was no dispute that he was travelling on a motorbike when he was arrested and found with the drugs. Counsel also added that the charge as framed contained sucient particulars as to the nature of the oence. 11. At the rst appeal, Korir, J (as he then was) answered the appellant’s complaint on the charge sheet as follows: “ 21. 12. In the case before me in the manner in which the Appellant was tracking in the narcotic drugs was not specied. However, no prejudice was suered by the Appellant as the kind of activity he was engaged in at the time of his arrest was not in dispute. In the words of the Court of Appeal in the just cited case, “(t)he answer to the nature of the transaction the appellant was engaged in when he was arrested is to be found in the words “illicit trac” in section 2.” It cannot thus be said that failure by the prosecution to specify in the charge sheet the kind of tracking the Appellant was engaged in occasioned him any injustice.” We echo the words of this Court in Mohamed Famau Bakari (supra) that as statute contemplates that there are 12 distinct ways in which tracking can be carried out, it is of paramount importance that the exact manner of tracking an accused person is alleged to have been involved in is specied in the charge sheet. A tenet of a fair criminal trial is that there must be clarity of the case an accused person is facing so that she/he can choose how to answer it and if the choice is to defend it, to be certain as to what is to be confronted. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1247/eng@2022-11-04 3

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13. The particulars of charge set out in the charge sheet were that “On the 6th day of April 2014 at around 1830hrs at Busia Town-Ship within Busia County, was found tracking in Narcotic drugs namely Heroin to wit 7kgms with a market (value) of Kshs. 7,000,000/= in contravention of the provision of the said Act”. 14. As observed by the rst appeal court, the charge sheet was defective in not specifying the nature of tracking that the appellant is alleged to have undertaken. On our part we hold that from the manner of questions the appellant asked in cross-examining the two police ocers who found him with the substance that later turned out to be narcotic substance, there would be no doubt in the mind of the accused that he was charged with possessing the substance while on transit on a motorcycle to Kampala and Congo. This would be conveyance of the substance, one of the ways of tracking contemplated in the Act. In section 2 of the Act, the word “conveyance” means a conveyance of any description used for the carriage of persons or goods and includes any aircraft, vehicle or vessel. Clearly by use of the word “includes” the three means specied is not a closed list. We have no doubt in our minds that carriage of a drug on a motor cycle is a conveyance. We are unable to discern any prejudice the appellant suered on account of the defect. Yet, in reaching this conclusion, we must not be understood to be trivializing the need for a charge sheet to be as specic as required by statute. We would have, without hesitation, found in favour of the appellant had the defect in the charge sheet compromised his right to a fair trial. It seems to us wholly unnecessary that the DPP should risk failing in his prosecutorial role simply because of inattention in framing a charge. 15. Just as he did before the rst appeal court, the appellant complained that he was not supplied with witness statements to enable him adequately prepare his defence. Our attention is drawn to the proceedings of September 23, 2014 in support of the argument that the witness statements were never supplied to him. 16. The State retorts that nowhere in the record does it show that the appellant was not supplied with the witness statements and the only time that the appellant informed the trial court that he did not have copies of an exhibit was when the appellant told the trial court that he was ready to proceed only after supply of the analyst report which he was then duly furnished with. We note that he has not specied which documents were not supplied to him and even his advocate who came on record when one witness was remaining was able to proceed with the cross-examination of the witness. 17. We traced and perused the original court le as it became apparent to us that the typed proceedings were improperly paginated and may not have accurately represented the ow of proceedings. The proceedings of July 2, 2014 read; Prosecution: I am ready with 5 witnesses in court Accused: I shall proceed if I am given the analyst report Prosecution: We are supplying the same right now Accused: I shall proceed after perusing it Court: The report to be supplied to accused. Case to proceed at 11.00am 11.00am Court: Parties are present Accused: I have got the report. We may proceed. Court: Case to proceed. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1247/eng@2022-11-04 4

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18. It is clear from the proceedings of the day that the appellant was happy to proceed with the hearing once he was furnished with the government analyst report. There is no suggestion that witness statements of the four witnesses had not been furnished to him and the cross examination by the appellant of the witnesses was robust and gives no hint of inadequate preparation. It is on September 23, 2014 that counsel comes on record representing the appellant. Counsel Miano asked for witness statements and the trial court made an order that they be furnished to him. The matter is adjourned to October 13, 2014 but eventually proceeds on October 22, 2014 when the last witness testied. Counsel does not complain that the statements he had sought had not been furnished to him. The matter proceeded and counsel cross examined the witness. In the circumstances, we are not able to discern any violation of the appellant’s constitutional right enshrined in articles 25 (c) and 50 (2) of the Constitution. 19. We turn to another aspect of the appeal. It is contended that the prosecution failed to prepare an exhibit on inventory to be counter-signed by the appellant and a third party or an independent witness as stipulated under section 19 of the Police Act Cap. 84 in support of the alleged evidence of search and recovery. Apart from the fact that the Police Act was repealed by the National Police Service Act on 30th August 2011 and was therefore inapplicable to this matter, this is not one of the issues raised in the rst appeal and cannot be properly before us for determination. This court has on countless occasions pronounced itself on this position. See for example in Alfayo Gombe Okello v Republic [2010] eKLR where this court held: “ Firstly, the issue was not raised since the trial began and was only raised for the rst time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore nd, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 20. We are satised that the evidence adduced proved that 2 black polythene bags with our-like substances in them were recovered from the appellant by PW1 and PW2.The two police ocers surrendered the 2 bags to PW5 who kept them in safe custody and on the next day handed them over to PW4 who in turn transported the 2 bags, still with the our-like substances, to Kisumu and handed them over to PW3. PW3, a government analyst, tested the our-like substances in the two polythene bags and found them to contain diacetylmorphine, the scientic name for heroin, a narcotic drug. There was cogent evidence of how the drug was recovered from the appellant and of how, in an unbroken chain, it was handled upto the time it was tested. The concurrent ndings of the two courts below are in tandem with the evidence adduced and cannot be faulted. 21. Before the High Court, the appellant submitted that the prosecution failed to prove that the substance of 7kgs said to have been found on him was pure or crude heroin and to ascertain the ratio of the substance that was found to be heroin. He made those submissions to support his argument that the particulars of the charge were defective. Before us he makes arguments that while the charge sheet indicated the said drugs to be 7kgs, it was unclear as to who had quantied the drug and how it was valued. He further submits that no valuation certicate was tendered in court by a gazetted ocer in support of the evidence. For this argument he relied on section 86 (1) (2) of the Act. The thrust of his grievance before us, dierent from his arguments before the High Court, is that there was improper valuation of the alleged drugs so as to deliberately mislead the trial court into imposing an incommensurate sentence. 22. We have read the submissions and grounds of appeal presented before the High Court. The argument regarding the quantication of the substance is made not to attack the sentence but to show a supposed defect in the charge sheet. Yet, if the charge sheet alleged a higher value than proved and the trial court imposed a sentence on the basis of the value in the charge sheet as opposed to what was proved as https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1247/eng@2022-11-04 5

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tracked, then the sentence imposed would be illegal. For clarity we reproduce section 4 (a) of the Act in which is the penal section for the oence: Any person who tracks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance, shall be guilty of an oence and liable— (a) in respect of any narcotic drug or psychotropic substance to a ne of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life; or 23. Flowing from that provision, the value of the narcotic has a direct bearing on the ne to be imposed which if unpaid has an imprisonment implication. Hence the singular importance of the value. While the appellant may not have elegantly made his arguments regarding this aspect, we grant him some latitude and nd that the issue was properly raised and in doing so we recognize that the appellant, a layman, was acting in person. 24. Section 86(2) of the Act reads: 86. Valuation of goods for penalty 25. (1) …………. (2) In this section "proper ocer" means the ocer authorized by the Minister by notication in the Gazette for the purposes of this section. The only moment the value of the narcotic came up in hearing is when PC Roseline Opondo, the investigating ocer, testied; “ The substance were weighing 3kgs and 4kgs respectively a total of 7kgs estimated to cost 7 Million Shillings. This is because it was not possible to separate our from the Narcotic drugs.” 26. The person who valued the narcotic and how the valuation was undertaken is not disclosed. In addition, the certicate required by section 86 (1) of the Act was not produced. Put simply, there was no proper valuation of the narcotic and as a corollary, there was no basis upon which the trial court or the High Court could impose a ne. That aspect of the sentence is for setting aside. 27. On the imprisonment itself, the appellant argued that, on the strength of the Supreme Court decision in Francis Karioko Muruatetu & another v Republic (number 1) [2017] eKLR, the minimum sentence prescribed under section 4 (a) of the Act is unconstitutional. We have looked at the penal provision as it then read (reproduced elsewhere in this decision) and nd that the penalty prescribed is a maximum as opposed to a minimum because of the use of the word “liable” in that provision. We have already held the ne imposed to be unlawful and is for setting aside. As to the imprisonment term of 20 years, we think it to be reasonably lenient taken against a possible imprisonment for life. Nothing has been placed before us that invokes further leniency. 28. Ultimately we reach the decision that the conviction is on rm ground and cannot be upset. On sentence, the ne of Ksh. 3,000,000 imposed by the High Court is set aside. For clarity the prison term of 20 years remains. Only to that very limited extent is the appeal successful. DATED AND DELIVERED AT KISUMU THIS 4TH DAY OF NOVEMBER, 2022. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1247/eng@2022-11-04 6

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P.O. KIAGE .............................. JUDGE OF APPEAL MUMBI NGUGI ............................... JUDGE OF APPEAL F. TUIYOTT ............................. JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1247/eng@2022-11-04 7

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