Republic v Omanyala & another (Criminal Case E1848 of 2023) [2020] KEMC 25 (KLR)

4. The prosecution was led by Ms. Chinga1 and Macharia2, 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 defence was represented by Ms. Muthomi3 and Tanga4, advocates. Substantive Facts of the Case 5. On or around 17.07.2023, the accused persons herein, Elisha Omanyala, and, Vincent Onyango, (herein referred to as the 1st Accused and 2nd Accused respectively) were arrested by police oficers from Nakuru Central Police Station, including PW2, No. 548195 SSGT Nekasio Njue, who were acting on a tip ofi and were then on patrol. The tip ofi was that the accused were suspected to be transporting ethanol. They quickly rushed to the scene and were able to intercept them while in a Toyota Wish vehicle KCK 396W, while they were descending towards Sarova Hotel. They found when the 1st accused was the driver of the motor vehicle, while the other accused was a co-driver or a passenger. They led them to the police station, where upon inspection or a search, they found the vehicle with 43 jerricans of 25 litres capacity each with a substance suspected to be ethanol. The matter was then handed over to the Directorate of Criminal Investigations (DCI) oficers. 6. PW6, No. 101890 PC Martin Lolepo, of the DCI, Nakuru East, took over and conducted the investigations herein, with the assistance of oficers from Kenya Revenue Authority (KRA). Investigations involved some photographs of the scene, which were taken by PW4, No. 01481 PC(W) Jane Mukami, from the DCI Nakuru Crime Scene Investigations. The same were produced as PEXH. Nos 1A – V, while the Scene of Crime report was produced as PEXH. No. 6, and the certificate as PEXH. No. 7. 7. PW1, James Makori and PW3, Daniel Okello, are the KRA oficers who were involved in the investigation herein. According to PW1, a technician at the KRA’s department of investigations and enforcements, they received information on the same day, i.e. 17/07/2023, that the vehicle herein had been intercepted and detained at Central Police Station, for having violated some tax ofiences. That together with PW3, they proceeded to the police station where they joined the DCI oficers handling the matter herein. That they opened the vehicle and found the jerricans herein inside it. That they removed the jerrycan – 43 in number, in the presence of the accused persons herein. They prepared an inventory to that efiect which was signed by all the parties including the accused persons herein. They then issued a notice of ofience to the accused persons before returning the jerricans into the vehicle. The notice was also signed by the accused persons. That the vehicle was then escorted to the KRA warehouse. That at the warehouse, they took samples of the liquid substance from the jerricans for testing and analysis. They then issued F89 which stated that the goods (the jerricans) had been deposited in the warehouse. He then went back to their ofice and prepared a report and collected the tax payable. The inventory, notice, F89 and the collection report were produced as PEXH. Nos. 2, 3, 4 and 5, respectively. The total tax payable and collected was Kshs. 478,789/-. 8. In cross-examination, PW1, James Makori, confirmed that the accused persons had committed an ofience because they had no document to show that they were allowed to transport the consignment. That the documents that they lacked included a delivery note and invoices. That at the time, they 1 Before the hearing commenced. 2 Conducted the hearing 3 Before the hearing commenced 4 During the hearing and submissions https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/25/eng@2020-11-20 2

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suspected the substance being transported in the jerricans to be ethanol, which is a restricted good. That he used a syringe in the presence of the accused persons to draw samples for government chemist’s analysis. That he was not present when the samples were being taken to the government analysis and he cannot therefore confirm whether the samples that he drew are the ones that were taken to the government analysis. 9. According to PW3, Daniel Okello, the samples were drawn from each of the 43 jerricans and placed in bottles, some with capacities of 300 litres, while others were placed in 200 litres-bottles. That the samples were then handed over to the DCI oficers for further tests at the government chemist. He confirmed that he participated in the drawing of the samples, but that he had not seen or met the accused person herein. 10. PW5, Christine Matindi, an analyst at the government chemist, Nairobi, produced the report from a colleague, Catherine Serah Murambi, as PEXH. No. 9. She informed the court that samples in 5 plastic bottles each containing 500litres of substance and others in 38 bottles each containing 200 litres of substance were received at their chemist on 18/09/2023, and analysed by Catherine Serah Murambi using Chromatography technique on 20/07/2023. That the level of alcohol in the samples was found to be 96% by volume, which converted into 94% by weight. That this level qualified the substance to be industrial spirit. 11. In cross-examination, she stated that it takes approximately 12 minutes to analyse each of the samples and therefore the analyses could not have been accomplished within a day. That, furthermore, it is not within their policy and protocol to prepare a report within a day. That the sample to be analysed must be subjected to their quality assurance protocols. That the report produced herein does not confirm that the samples herein are industrial spirit. That the report she has presented in court does not also include the methodology. That the report is technical in nature and requires interpretation by an expert. That the report does not also indicate that the samples were secured in any storage facility, given that the analysis was done 2 days upon their receipt. 12. The investigating oficer, PW6, No. 101890 PC Martin Lolepo, stated in cross-examination that he charged the accused persons with conveying ethanol which were uncustomed, after receiving the report of the government analyst. That the report however has no conclusive finding that the samples were ethanol. That he cannot answer question on whether the substance formed part of restricted goods. Issues, Burden and Standard of Proof 13. 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 accused herein to make their defence as required by section 211 of the Criminal Procedure Code. 14. The case of Republic v Kennedy Otieno & 6 Others (1998) eKLR, gave a 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. 15. The whole issue of whether a prima facie case has been made or not is a legal, rather, than a factual one. Has the prosecution proved to the required standard of beyond reasonable doubt that the substance that the accused persons are alleged to have transported and/or possessed herein was ethanol? This is because the legal burden of proving that the substance herein is ethanol 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 accused possessed and/or or conveyed ethanol which is uncustomed. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/25/eng@2020-11-20 3

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Determination 16. To prove tht the substance herein is ethanol, the Prosecution called PW5, Cristine Matindi who testified on behalf of a fellow government analyst on the analysis that the alleged samples were subjected to: that the samples were analysed on 20/07/2023 using Gas Chromatogtaphy technique, and all were found to contain 96% alcohol content by volume; and 94% alcohol content by weight. The report concluded that the samples may be classified as an industrial spirit. The witness however confirmed that the finding is not conclusive. She produced the Report (P.EXH 10) which I have also examined. 17. From the Report (P. EXH 10) the classification of the liquid in the sample is not conclusive. Whereas the exhibit memo, produced as PEXH. No. 9, expressly requested that the analyst ascertain whether the content in the samples are ethanol and their alcoholic content, the analyst returned a report of whether the liquid may be classified as an industrial spirit, and therefore appears to have set her own question for examination. Learned counsel for the defence has seriously attacked the prosecution evidence, by casting aspersion on the validity and accuracy of this expert report. 18. Section 48 of the Evidence Act, Cap 80 contemplates such expert opinions in criminal trials and provides as follows: 48. 19. Opinions of experts 1. When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions. 2. Such persons are called experts. Potter, JA in giving guidance of who an expert was and how the Court should deal with expert evidence held in the Court of Appeal case of Mutonyi v Republic (1982) KLR 203 at 210 thus: Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like. Section 48 of the Evidence Act (Cap 80) provides that where, inter alia, the court has to form an opinion upon a point “of science, art, or as to identity or genuineness of handwriting or finger or other impressions”, opinions on that point are admissible if made by persons “specialist skilled” in such matters. In Cross on Evidence 5th Edition at page 446, the following passage from the judgement of President Cooper in Davie versus Edinburgh magistrates (1933) SC 34, 40, as scenting the functions of expert witnesses: “Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts put in evidence.” So, an expert witness who hopes to carry weight in a court of law, must, before giving his expert opinion: 1. Establish by evidence that he is especially skilled in his science or art. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/25/eng@2020-11-20 4

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20. 2. Instruct the court in the criteria of his science or art, so that the court may itself test the accuracy of his opinion and also form its own independent opinion by applying these criteria to the facts proved. 3. Give evidence of the facts on which may be facts ascertained by him or facts reported to him by another witness. It is thus clear that in accepting expert evidence, the Court must consider with keen scrutiny such expert evidence alongside other evidence and make up its own mind whether to accept it or not. In Silvanus Njuki Nguku v Republic [2015] eKLR, Tunoi, O’Kubasu JJ A & Onyango Otieno, Ag JA held that:An expert witness should come to court prepared to justify his opinion by argument and demonstration, but he need not necessarily be called upon to do so. In many cases it is suficient if the witness gives his opinion and the more eminent the expert the less the need for demonstration. A doctor may give his bare opinion as to the cause of death, and government analyst even in the rare cases where he is called as witness, may state without argument his conclusion (for example) that seminal stains were found on the clothing. In every case the Court is entitled to accept or reject the opinion of the expert, and in that sense it must make up its own mind. 21. I have considered the findings of C. S. Murambi as recorded in PEXH. No. 10. Her findings are inconclusive on whether the substance herein is ethanol. The same are also not accurate. She states that the liquid may be classified as an industrial spirit, even though that was not what the investigating oficer had requested her to examine. I thus do hereby agree with the learned counsel for the defence that the government chemist report adduced herein does not meet the threshold of precision and/ or accuracy as instead of concluding whether the sampled liquid was ethanol, it only notes that the said liquid may be classified as an industrual spirit. Lack of precision in such a crucial report makes it incompetent together with the charges which rely on it, as the charges talk of ethanol, whereas the report talks of an industrial spirit, whose classification is not certain because of the use of the the phrase: ‘may be’. 22. Besides, PW5, alleges that the ethanol percentage level discovered in the sampled liquid denotes that the liquid is ethanol without adducing any statutory instrument or schedule to prove or justify that. It still leads to the same conclusion that such a report is without accuracy/ precision and was meant to mislead and bring a confusion to this trial. 23. Having established that the prosecution’s case herein was hinged on incompetency, and non-existent elements in the expert opinion evidence herein, I do find that the prosecution has been unable to prove a key ingredient in which the charges herein are hinged: that the substance that the accused are alleged to have been found with was ethanol. 24. The accused herein should not therefore be called upon to make their defence on account of the insuficient and or confused evidence adduced against them by the prosecution who, as aforestated, throughout herein bore the burden of proof. They are entitled to remain silent because the prosecution's case appears unproved. This is therefore 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 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/25/eng@2020-11-20 5

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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. 25. Guided by the above decision, I do hereby find that no prima facie case has been disclosed to warrant the accused 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 accused persons herein. Final Disposal Orders 26. 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 accused persons herein and consequently do hereby acquit the 1st accused person of the ofience of Conveying Uncustomed Goods contrary to section 199(b) as read with section 199(iii) of the East African Community Customs Management Act, 2004 as charged in the first charge or count, and both accused persons of the ofience of Being in Possession of Uncustomed Goods contrary to Section 200(d)(iii) as read with Section 210(c) of the same Act as charged in the second charge or count. Their cash bails are also hereby released to the depositors. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 20TH DAY OF NOVEMBER, 2020 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Wakesho Prosecutor: Konga Defence counsel: Tanga 1st Accused: Present 2nd Accused: Present KRA Oficers: n/a Tanga: I make an application on behalf of the owner of m/vehicle KCK 396W, Michal Andiba Omutekele, the court having acquitted the accused persons, the motor vehicle together with the exhibits that were detained by the state at KRA warehouse, be released to the said owner and/or his appointed agent or counsel appearing on record for the accused persons. Konga: No objection. CT: The vehicle was subject to an application filed earlier on herein. I do order that it be released to the proven owner, who must submit the original ownership documents to the oficer detaining the vehicle. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/25/eng@2020-11-20 6

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