Republic v Kirora (Criminal Case 101 of 2018) [2020] KEMC 18 (KLR)

PEXH. NO. 2. In the report the analyst concluded thus: ' The plant material was examined and found to be cannabis, which is listed under the Narcotic drugs and Psychotropic Substances (Control) Act 1994.' The Charge and Procedure 4. Meanwhile, the defendant herein was charged with the ofience of Being in Possession of Narcotic Substance contrary to section 3(1) as read with section 3(2) (A)1 of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994 ( hereinafter abbreviated as NDPCA). He denied that on 21.08.2018 at Bura Manyatta in Tana North Sub-County within Tana River County, he was found with 15 rolls of Cannabis Sativa valued at Ksh 1500/= which was not in medicinal preparation form. 5. The defendant was unable to meet the bond terms set/ revised herein and has therefore been in remand throughout the duration of the trial herein. He was unrepresented. The prosecution was on the other hand represented by Ms. Anthony Karanja and Atika D., 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. After some delay2, hearing commenced and closed on 22.01.2019 and 05/12/2019. There were brief submissions by the defendant after which this matter was fixed for 14.01.2020, for this judgment. Substantive Facts of the Case 6. The facts of the case herein are basically as per the introductory statement hereinabove. The defendant in his evidence denied that anything was recovered at his place by the police oficers as alleged herein. He instead stated that the police oficers confiscated his money, phones and shoes in the pretext that they were to clear him. That he instead spent at the cells for some time before later being charged possibly because of the money that they retained. He however denied the police harbouring any grudge against Submissions 7. The defendant mainly submitted that the prosecution evidence was incomplete. That not all the police oficers came to court. That the concerned police oficers, those who took his phone, were not presented in court as witnesses. Issues, Burden and Standard of Proof 8. The defendant has denied that he was not found in possession of cannabis as alleged. The issues herein are therefore whether the defendant was found in possession of PEXH. NO. 1, and whether the same is cannabis within the meaning of section 2 of NDPCA. The burden of proving the same lies with the prosecution and the standard of proof is beyond reasonable doubt3. Determination 9. The defendant herein gave evidence on oath. His evidence should therefore be considered together, as a whole, with the evidence by the prosecution witnesses. His evidence is that he was not found with 1 Should be Section 3(2)(a) 2 On 19.09.2018 and 23/11/2018 the prosecutions exhibits were not ready; 10.10.20018 was suddenly confirmed to be a public holiday; while on 05/11/2018 and 07/01/2019, I was indisposed; 3 See Elizabeth Waithiegeni Gatimu Vrs Republic [2015]eKLR. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/18/eng@2020-01-16 2

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any cannabis and that the exhibit herein was planted on him so as to incriminate him because of his money and some of his items that were detained at the police station. 10. Let me first observe that it was not desirable for PW3 to act as an eye-witness, a recovery oficer, the arresting oficer and also the investigating oficer at the same time. Another neutral witness could have carried out the task of investigations herein. The defendant herein could therefore be right when he insists that he was subjected to an unfair process herein. 11. The notes in the exhibit memo, appear to prove that the defendant herein was subjected to an unfair process. PW3, the eye-witness, arresting oficer and the investigating oficer herein, confirmed that he is the one who prepared the exhibit memo ( PEXH. NO. 3). He insisted in his evidence in court that the defendant herein was found with cannabis sativa in his jacket which was hanged at his house. The defendant, in his evidence, denies that anything was recovered from his house. Immediately after the defendant's arrest, PW3, described his arrest in the memo form that the defendant was stopped by police oficers, searched and the 15 rolls of green plant materials recovered from him. 12. This description seriously departs from the prosecution's evidence that the substances were recovered from a jacket hanged in the defendants house. I find this inconsistency to be so serious, in light of the defendant's defence that nothing was recovered from his house. I thus doubt whether or where the exhibits herein were recovered. There is thus a serious doubt in the prosecution's case herein, which doubt should benefit the defendant herein. 13. This doubt is compounded by the omission b the prosecution to present the jacket from which the rolls herein are alleged to have been recovered. I see no reason why the jacket could not be availed in court. The only inference is that there was no such jacket, or that the cannabis was not recovered from the jacket, and that the cannabis were not recovered in the defendants house as insisted by the defendant. 14. Well, not all parts of the cannabis plant has 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 however excludes the seeds and leaves. They in fact appeared to be leaves, and it was not confirmed whether they were unaccompanied by the fiowering or fruiting tops of the cannabis plant. 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. 15. I do therefore find that the prosecution has failed to prove to the required standard of beyond reasonable doubt that the defendant herein was found in possession of cannabis as defined in section 2 of NDPCA. I do therefore enter a finding of not guilty. Final Disposal Orders 16. The defendant is hereby acquitted under section 215 of CPC of the ofience of Being in Possession of Cannabis Sativa C/S 3(1) as read with 3(2)(a) of NDPCA. He should therefore be set at liberty forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS_16TH_ DAY OF JANUARY, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/18/eng@2020-01-16 3

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In the presence of; Court interpreter: Buko Prosecution: Atika Defence counsel: N/A Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/18/eng@2020-01-16 4

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