Republic v Gitome (Criminal Case 886 of 2016) [2017] KEMC 134 (KLR)

abbreviated as NDPCA). She denied that on 10.04.2016 at Muthengera area of Laikipia County, she was found in possession of cannabis sativa to wit 1 roll which was not in form of medical preparation. 4. She has been out on a Kshs. 15000/= cash bail since 27.07.2016 when she deposited the amount. She was unrepresented, while the prosecution was represented by Ms. Chelangat, prosecution counsel instructed by the Director of Public Prosecutions, who, by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. 5. Hearing commenced on 25.07.2016 after the defendant had attempted to change her plea on 06.07.2016, when the matter was first scheduled for the hearing. The prosecution then closed its case on 23.01.2017 when the last witness testified. All the other adjournments and the reasons therefor have been well captured in the record of proceedings herein and do not therefore require any additional explanation or duplication herein. Issues, Burden and Standard of Proof 6. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. The main issue at this stage is whether the prosecution, in discharging this burden, has established a prima facie case that requires me to call upon the defendant herein to make her defence as required by section 211 of the Criminal Procedure Code. 7. The case of Republic v 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. 8. In establishing a prima facie case herein, the prosecution was supposed to prove that the defendant was found in possession of PEXH. NO. 1, and whether the same is cannabis within the meaning of section 2 of NDPCA. 9. Cannabis is defined by section 2 of the NDPCA. Section 2 of the NDPCA provides as follows: “ cannabis” means the fiowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by tops) from which the resin has not been extracted, by whatever name they may be designated Determination 10. Not all parts of the cannabis plant have been illegalised by the NDPCA. The definition of cannabis in section 2 of the act is clearly restrictive in nature and when read alongside the provisions of sections 3(2)(a) of the same Act and the firsts schedule thereof, restricts the applicability of the provisions to the 'fiowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by tops) from which the resin has not been extracted'. The evidence laid by the prosecution does not therefore excludes the seeds and leaves. The prosecution has thus failed to prove to the required standard of beyond reasonable doubt that the plant material herein was cannabis as defined by the provisions of section 2 of NDPCA. 11. There was therefore need for the government analyst to clarify which part of the cannabis plant the said plant materials are alleged to have come from given that it could have as well come from the seeds or roots or even stem of the cannabis plant thereby rendering them not illegal. 12. In absence of proof, there is no need to call upon the defendant to make his defence. That will be tantamount to calling upon her to incriminate himself. I do therefore find that no conviction can ensue even if the defendant is called upon to make his defence. The gaps left in the prosecution case should https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/134/eng@2017-01-24 2

page 2 of 3

not be cured by the defendant. What if the defendant exercises one of her rights under section 211 of the Criminal Procedure Code and opts to remain silent? 13. The High Court in Republic v 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. 14. Guided by the above decision, I do hereby find that no prima facie case has been disclosed to warrant the defendant herein to be called upon to make his defence herein. The upshot is that I do hereby enter a finding of not guilty against the defendant herein. Disposal Orders 15. Pursuant to the provisions of section 210 of the Criminal Procedure Code, I do hereby dismiss the charges herein and do hereby acquit the defendant herein of the ofiences of Being in Possession of Cannabis Sativa c/s 3(1) as read with 3(2) of the NDPCA. The cash bail deposited herein to be refunded back to the depositor. 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 clerk/ interpreter: Tiktik Court prosecutor: Chelangat Defendant: present https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/134/eng@2017-01-24 3

page 3 of 3