Republic v Mbao (Criminal Case 1405 of 2014) [2017] KEMC 128 (KLR)

the reasons recorded in the records of proceedings herein, hearing of the prosecution case commenced on 02.10.2015, after over a year's delay, and closed on 12.10.2016. The prosecutions called a total of 4 witnesses. 4. The prosecution was led by Mss. Wambua and Chelangat, prosecution counsel, instructed by the Director of Public Prosecutions, Nyahururu, who by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. The defendant was however represented by Mr. Waichungo, an Advocate, who submitted on his behalf at the close of hearing. Substantive Facts of the Case 5. While being cross-examined, the two AP oficers, PWI, PF 228361 CPL John Mwangi, and PW2, PF. 93048233 APCPL David Nderitu, confirmed that they did not take any inventory of the alcohol that they recovered. 6. PW3, NO. 75999 PC. Hillary Kiprono, informed the court that upon charging the defendant herein, he prepared an exhibit memo of some two samples, each from the containers with the alcoholic drinks herein, which he sent to the government chemist for analysis. He produced the two containers with the alcoholic substance herein as PEXH. Nos 1A and IB. He also produced the exhibit memo that he used to send the samples to the government analyst as PEXH. No. 2. He also produced the two samples as PEXH. Nos. 4A and 4B. 7. The samples were received, analysed and confirmed to be distilled alcoholic drinks by PW4, Dennis Owino Onyango, a government analyst from the Government Chemist. He produced his report of the analysis as PEXH. No. 3. Submissions 8. Learned counsel for the defendant submitted at the close of hearing that the charge herein is defective. Relying on the authority of Justice Lesiit in Robert Kinyua =vrs= Republic [2011] eKLR, counsel submitted that section 27(1)(b) of the Alcoholic Drinks Control Act (ADCA), is a general provision that does not create an ofience and that the inclusion of subsection 4, which is a punitive section did not cure the defect. Learned counsel went on to argue that the prosecution had to put the actual section that the defendant herein is said to have contravened under the ADCA. That by failing to do so, the charge is defective. In page 3 of the above cited authority, Justice Lesiit stated as follows: From the very wording of the above section (section 27(1) of the ADCA), it is clear that this is a general provision which provides for conformity with the requirements under this Act (ADCA). This section does not create an ofience. It can only be read together with the ofience creating provision under the Act, in order to create an ofience. Just by a way of an example the section requires conformity to the requirements of the Act generally by persons who either manufacture (,) import or distribute; or who possess alcoholic drink. The prosecution had to quote the actual section the appellant contravened under the Act in the statement of the charge for the charge to be complete. It was not suficient to quote in the statement of the charge that the appellant was in possession of an alcoholic drink without a licence, without stating which section under the Act the appellant breached. (sic; parentheses are mine) 9. Counsel further submitted that the arresting oficers herein, PW1 and PW2, did not comply with the mandatory provisions of section 60 of the ADCA which requires that there be an inventory prepared of the alcoholic drinks seized at the time of the arrest. Counsel finally submitted that possession was not proved. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/128/eng@2017-01-24 2

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10. There was no response from the prosecution. Issues, Burden and Standard of Proof 11. At this stage the court is required to make a finding whether a prima facie case has been established or not. The main issue at this stage is therefore, whether the prosecution, in discharging its burden of proof, has established a prima facie case suficient to requires me to call upon the defendant herein to make his defence as required by section 211 of the Criminal Procedure Code. 12. The case of Republic Vrs Kennedy Otieno & 6 Others (1998)eKLR, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given. 13. The whole issue of whether a prima facie case has been made or not is a legal, rather, than a factual one. The legal issues raised in the learned counsel's submissions are the main issues for determination. It is mainly whether the charge herein is defective as per the decision in Robert Kinyua Vrs Republic, supra, and if it is defective, then whether the defect is fatal to the prosecution's case? 14. On the issue of the inventory, the provisions of section 60(1) of the ADCA, definitely provides for a full inventory of the seized alcoholic drinks. The same is provided for therein as follows: During an inspection under this Act, an authorised oficer may seize any alcoholic drink or thing by means of which or in relation to which the oficer believes, on reasonable grounds, that this Act has been contravened and a full inventory thereof shall be made at the time of such seizure by the oficer. [Emphasis mine] 15. It was confirmed during the proceedings herein that no such inventory was made herein and the related issue for determination herein is the efiect of such non-compliance on the prosecution or the evidence adduced herein. 16. The last issue is that of possession. Whether the same has been proved to the required standard herein. The burden of proving possession lies with the prosecution and the standard of proof is beyond reasonable doubt. The prosecution ought to have proved to the required standard of beyond reasonable doubt that the alcoholic drinks herein (they were confirmed to be alcoholic drinks) were found in possession of the defendant herein. Possession to me involves having a degree of physical control over the elephant tusks, with the person in control knowing that the elephant tusks are in his control. That was the position in Warner Vrs Metropolitan Police Commissioner [1969] AC 256 and Republic Vrs Chatwood [1980] 1 ALL ER 567. The issue of possession must therefore involve knowledge that the said item is in one's possession Determination 17. I will begin with the second legal issue, that is, failure to comply with the provisions of section 60(1) of the ADCA. The oficers who by virtue of section 50(3)(b) are authorised oficer for purposes of the ADCA, they being police oficers involved in the maintenance of law and order, had the right to enter the dwelling house of the defendant herein, then a suspect, by virtue of section 54 of ADCA, and with the consent of the defendant herein. They were however supposed to comply with the mandatory provisions of section 60(1) of the ADCA and prepare an inventory of the alcoholic drinks seized therein. As such, I do find that they breached the provisions of the ADCA themselves, and could therefore be possessing the alcoholic drinks herein contrary to the provisions of section 60(1) of the same Act. Could they be found to be liable for a general ofience under section 27(1)(b) of the ADCA, for possessing seized alcoholic drinks in contravention of the provisions of section 60(1) of the Act? https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/128/eng@2017-01-24 3

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18. The provisions, I do believe, were meant to curb the highly possibility of alcoholic drink being planted on an innocent individual as used to be common during random msakos in the days gone by. It should however be remembered that the ADCA was promulgated under a new constitutional dispensation and such abuse of the criminal process needed to be limited. A look at the various provisions in the ADCA, such as section 50 of the requirements of appointment by the minister and issuance of certificates of appointment to authorised for the enforcement of the provisions of the ADCA, Section 51(2) requiring authorised oficers to produce their certificate of appointment before entering any place reasonably suspected that any person or persons is in any way contravening the provisions of the ADCA, Section 54 which requires the consent of occupant or a warrant for an authorised oficer to enter a dwelling house, Section 55 which restricts the grounds upon which a warrant may be issued, Section 56 which restricts the use of force by an authorised oficer, and section 60(1) on the requirement for an inventory upon seizure, are all meant to prevent abuse of the provisions of the ADCA as had been prevalent before. I would in fact recommend that Parliament consider introducing similar provisions into the Narcotics Drugs and Psychotropic Substances Control Act, another often abused law, especially with regards to possession of cannabis. 19. An inventory is usually signed by both parties: the recovering oficer, and the suspect from whom the exhibit has been recovered. Given that none was made herein, and in contravention of the mandatory requirements of the same Act that the oficers allege to be enforcing, and which they breached, I find that the charges herein, that resulted from such an illegal process, are invalid ab initio. There is therefore no proof that the alcoholic drinks produced as exhibits herein were actually recovered from the house of the defendant herein, or in his possession as alleged herein. They could have been planted on him. In the circumstances, it is not the defendant herein who is guilty of the general breach of the provisions of ADCA, but it is the oficers who possessed the purported seized alcoholic drinks in breach of the provisions of section 60(1) ADCA. 20. I shall therefore, for purposes of section 60(1) ADCA, refuse to admit and rely on the exhibits herein which I find to have been seized in violation of the express and mandatory provisions of the law. I do therefore find that the evidence for the prosecution falls short of the required standard as there is no proof that the alcoholic drinks presented herein were recovered or seized from the defendant herein. 21. I do believe that that finding is suficient to dispose of this criminal dispute. 22. On the issue of the charge being defective, I would have had to distinguish the decision in Robert Kinyua Vrs Republic, supra, and applied the stringiest test provided for by Justice J. M. Ngugi, in Fappyton Mutuku Ngui Vrs Republic [ High Court of Kenya At Machakos Criminl Appeal No. 296 of 2010 - unrep.]. The learned judge of the High Court held that the test for whether a charge sheet is fatally defective is a substantive one: was the accused charged with an ofience known to law and was it disclosed in a suficiently accurate fashion to give the accused adequate notice of the charges facing him? If the accused can be said to have understood the charges facing him well enough to understand the ingredients of the crime charged so that he can fashion his defence. This can be tested, for example, by how much or vigorously he participated in the trial process and whether the record shows that he was able to follow the proceedings and ask questions in line with his theory of defence. 23. The test is therefore not at all a formalistic one, as presented by the learned judge in Robert Kinyua Vrs Republic, supra, that the learned counsel for the defence relied on. It is a substantive one as held by Justice Ngugi, another High Court judge, in Fappyton Mutuku Ngui Vrs Republic, supra. It is an adopted test that looks at the trial process in its totality rather than the retail defects separately. The aim is to establish if the trial process could have been said to be fair to the defendant. If the charge has a technical defect but all the other procedures are meticulously followed and the other substantive rights https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/128/eng@2017-01-24 4

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of the defendant are evidently presented in the trial process, it will be easier for a court to immunise the technical defect in the charge, especially if it is clear that the defendant understood what was facing him and his participation in the trial process vindicates that position. It should be noted that the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, provide that justice shall be administered by our courts and tribunals without undue regard to such technicalities. 24. To address the point raised by the learned defence counsel on the defect in the charge herein, and whether the same is fatal, I will therefore have to determine whether there was a miscarriage of justice herein. I do not feel that it will be necessary for me to do that, having already found that the prosecution has failed to prove its case against the defendant herein, mainly because of the manner in which the alcoholic drinks herein were recovered or seized which clearly violates the provisions of the ADCA, which the oficers sought to enforce herein. 25. The defendant herein should not therefore be called upon to make his defence on account of the evidence adduced against him by the prosecution who throughout herein bore the burden of proof. He is entitled to remain silent because the prosecution's case appears unproved. This is a case that should not proceed beyond the prosecution's inconsistent evidence. The prosecution has thus been unable to prove its case to the required standard of beyond reasonable doubt at this stage. The High Court in Republic Vrs Kennedy Otieno & 6 Others, supra, addressed the point as follows: It must be remembered that at the close of prosecution case, an accused has a right to keep silent in his defence. An accused person is brought to court by the prosecution. It is upon the prosecution to prove a case against an accused person beyond reasonable doubt. An accused person is under no obligation to prove his innocence. The burden of proving his guilt lies on the prosecution. 26. Guided by the above decision, I do hereby find that no prima facie case has been disclosed to warrant the defendants herein to be called upon to make their defence herein. The upshot is that I do hereby enter a finding of not guilty against the defendants herein. Final Disposal Orders 27. I do therefore find no prima facie case disclosed herein and pursuant to the provisions of section 210 of the Criminal Procedure Code, I do hereby dismiss the charges against the defendant herein and consequently do hereby acquit all of the ofience of Contravening Alcoholic Drinks Control Act c/s 27(1)(b) as read with section 27(4) of the same Act. His surety is hereby discharged and any security deposited on his behalf herein to be released to the depositor. The alcoholic drinks produced as exhibits be destroyed. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 24TH DAY OF JANUARY, 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik Prosecutor: Chelangat Defence Counsel: Waichungo Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/128/eng@2017-01-24 5

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