Republic v Gichira (Criminal Case 84 of 2018) [2020] KEMC 24 (KLR)

3. He remained in custody till 10.04.2019, when he was released on a bond of Kshs. 40,000.00, when he presented a suitable surety. He has therefore been out on the bond since then. Because of the reasons in the records of proceedings herein, hearing of the prosecution case commenced on 26.11.2019, after a 2 months' delay, and closed on 24.09.2019. The prosecutions called a total of 3 witnesses. 4. The prosecution was led by Ms. Karanja and Atika, 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. The defendant was however unrepresented throughout the trial process herein. Substantive Facts of the Case 5. While being cross-examined, PW1, NO. 262019 PC Martin Mvuria, stated as follows: ... I do not know whether you were selling the alcohol to them or not i.e. those who escaped. We also found you with the cups there, We came with them together with the yellow jerrican... People escaped. We became suspicious. We decided to enter there to find out why they were escaping. 6. PW2, NO. 113617 PC. Solomon Karanja, informed the court that he took the exhibits, a sample from the alcohol that was recovered in the yellow jerrican herein, he prepared an exhibit memo of the sample, which he sent to the government chemist for analysis. He produced the sample in a 1 litre jerrican as PEXH. NO. 2. He also produced the exhibit memo that he used to send the sample to the government analyst as PEXH. NO. 3 and the report of the government analyst which confirmed that the liquid was a traditional liquor as PEXH. NO. 4. Issues, Burden and Standard of Proof 7. 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 require me to call upon the defendant herein to make his defence as required by section 211 of the Criminal Procedure Code. 8. 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. 9. The whole issue of whether a prima facie case has been made or not is a legal, rather, than a factual one. The provisions of section 60(1) of the ADCA, definitely provides for a full inventory of 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] 10. It was not confirmed during the proceedings herein that any 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. Determination 11. I will begin with the first 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/24/eng@2020-08-04 2

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ADCA, they being police oficers involved in the maintenance of law and order, had the right to enter the homestead herein, then a suspected scene of crime, 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 drink/s seized therein. There was however no proof that the oficers complied with the legal requirements herein. As such, I do find that they breached the provisions of the ADCA themselves, and could therefore be possessing the alcoholic drink 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? 12. 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 passed 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. 13. 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 charge herein, that resulted from such an illegal process, is invalid ab initio. There is therefore no proof that the alcoholic drink produced as exhibits herein was actually recovered from the homestead herein. It could have been planted on him. In the circumstances, it is the oficers who possessed the purported seized alcoholic drink in breach of the provisions of section 60(1) ADCA. 14. 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 drink presented herein was recovered or seized from the defendant herein. 15. 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/24/eng@2020-08-04 3

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person is under no obligation to prove his innocence. The burden of proving his guilt lies on the prosecution. 16. 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 his defence herein. The upshot is that I do hereby enter a finding of not guilty against the defendants herein. -Final Disposal Orders 17. 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 him of the ofience of Dealing in Alcoholic Drinks Control Act c/s 7(1) (b) as read with section 62 of the ADCA. The warrant of arrest against him is however still in force. 18. The alcoholic drinks produced as exhibits herein be destroyed once the 14 days appeal period lapses, and there is no indication of an appeal from the Director of Public Prosecutions. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS_04TH DAY OF _AUGUST 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Prosecutor: Atika Defendant: Absent National Police Service: PC Mwangi https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/24/eng@2020-08-04 4

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