Republic v Kivwea (Criminal Case E204 of 2023) [2025] KEMC 368 (KLR)

4. Upon the prosecution’s case the court made a finding that the accused had a case to answer and was therefore placed on his defence. He elected to give sworn testimony and called one witness in his favour. Defence Case: 5. Nicodemus Munyao Munywoki (DW 1) testified that he was falsely accused for the crime since he had a grudge with the area assistant chief. That he works as a veterinary oficer and that the only farm he knows belong to his parents. Further, that on the day of his arrest police oficers came to his home and they handcufied him telling him that they were taking him to the police station. Instead, they took him to a farm where they met the areas assistant chief and other police oficers who were taking photographs. He denied knowledge of the farm showing the oficers a difierent parcel of land that belonged to his parents. DW 1 was firm that ownership of the said parcel of land was not ascertained by production of ownership documents. 6. Felix Muteti Musau (DW 2) in support of the defence case testified that he knows the accused as a veterinary doctor who primarily treats cows. That on the day the cannabis plants were uprooted he went to the said area near River Athi. That the farm does not belong to the accused or his family. Analysis 7. In analyzing the case at hand, the court notes that the accused was charged with the ofience of cultivating cannabis contrary to section 6 (a) as read with 6 (b) of the Narcotic Drugs and Psychotropic Substances Control Act. That section provides that: “ Any person who— (a) cultivates any prohibited plant; or (b) being the owner, occupier or concerned in the management of any premises, permits the premises to be used for the purpose of the cultivation, gathering or production of any prohibited plant, shall be guilty of an ofience and liable to a fine of two hundred and fifty thousand shillings or three, times the market value of the prohibited plant, whichever is, the greater, or to imprisonment for a term not exceeding twenty years or to both such fine and imprisonment.” 1. Whether accused cultivated plants suspected to be narcotic drugs? and 2. Whether the recovered plants suspected Narcotic Drugs were tested and determined to be narcotic drugs? I. Whether the accused cultivated narcotic drugs? 8. In criminal cases, the prosecution is required to tender evidence that would prove beyond reasonable doubt that an accused is guilty. The burden lies squarely on the prosecution in this regard. To ascertain what is meant by this standard of proof, this court shall find reliance in the authority of Miller V Ministry Of Pensions, [1947] 2 ALL ER 372 where Lord Denning stated: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to defiect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/368/eng@2025-01-30 2

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but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will sufice.” 9. SGT. Paul Muragu (PW 1) in his testimony stated that when the accused was arrested at his home, he led police oficers to the farm where he was cultivating the narcotic drugs. This issue was hotly contested by the accused since it is the mainstay of the charges in court. PW 2, SGT. Mathias yativo of Yathui Police Station stated that the accused led the team to the plantation after his arrest. PW 3, Assistant Chief David Soso was more direct. He testified that he knew the accused well-being a resident of his location and also knew the farms he cultivates very well. However, he stated that the accused led them to the farm too. 10. The accused in his defence faulted SGT Muragu stating that he testified that there were two groups of the team. One that went to the farm and one that went for his arrest. The implication is that he was arrested from his home and forcefully taken to a farm which he is not aware of and accused of cultivating it. Indeed, he stated that no ownership credentials were provided to back up the prosecution’s claim. 11. This court finds that the accused had knowledge of the farm and actually took police oficers to the farm where cannabis was cultivated by himself for the following reasons: a. The raid was conducted in the wee hours of the morning and it is logical that the accused led a team of oficers drawn from both Yaathui Police Station and Wamunyu Law Courts. He was the only one who would guide them to the farm; b. I have also looked at PW 1’s testimonay and indeed he says that two teams formed at the home of the accused, one separated and went to the farm as led by the accused. None of the prosecution witnesses stated that there was an advanced team at the scene of crime; c. PW 5, CPL SAMSON CHEMWETICH who testified as the investigating oficer did not mention the issue of going to the farm during his examination in chief. However, on crossexamination the question was posed to him as to whether it was the accused who led the team to the ground or if there was an advanced party to the scene. PW 5 answered that it was the accused who led oficers to the farm; d. In his defence testimony, the accused stated that he was lied to that he was being taken to the station but instead he was taken to the farm where he met the assistant chief and other police oficers taking photographs. The court finds this aspect of the testimony untruthful and a belated attempt to sway the court’s mind to a difierent finding. This is because when DAVID SOSO, the assistant chief Kaitha sub-location testified the accused never once asked him about whether he was at the scene before the accused was escorted there. This was the best witness to be cross-examined over that issue and the accused failed to do so; e. Neither did the accused cross-examine PW 3, the assistant chief as to whether there was a grudge between them. The only logical conclusion this court can draw is that the issue of there being a grudge was a belated attempt during the defence testimony to discredit the prosecution testimony; f. On the aspect of the farm not belonging to the accused, the court finds that indeed no ownership documents were produced. However, it was common knowledge to the local administrators at the village who knew who farmed the said parcel of land that later turned out to be a scene of crime. PW 3 the assistant chief stated that he got information from nyumba kumi elders who informed him that the accused had planted cannabis. He went ahead and https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/368/eng@2025-01-30 3

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verified this information to the extent that when the accused cross-examined him he ansered that he knew the accused’s home and their farms very well. That only part of their land had been leased to some people and not the piece that had cannabis growing in it. g. In addition, Felix Muteti Musau DW 2, the accused’s witness, upon being cross-examiend learned counsel Ms. Murambi for the DPP admitted that the accused’s farm is in Kaitha though it belonged to his father. Crucially that the land was leased to some traders though neither the accused nor his witness produced any document or witness to this efiect e.g. the father, mother or the lessee; h. Dw 2 also corroborated SGT Muragu’s testimony that the land belonging to the accused’s family was near the river. That from the road plants in the middle of the farm are not visible.; i. Lastly, when learned counsel Ms. Mati cross-examined the accused after he gave defence testimony he stated that his statement at the police stated that in April, 2022 he himself leased the land to a maasai man. That his own personal statement presupposed that it was his piece of land. Clearly, the accused had control, knowledge and direct or indirect use of the land in question. 12. In view of the foregoing therefore, the court finds that the accused had the knowledge of the said cannabis plants having been planted in the said parcel of land. That the land was in his control and possession as at the time of the arrest as per the corroborated testimony of prosecution witness. 13. The court is fortified in this decision since Section 116 of the Evidence Act provides that the burden of disproving ownership where a person is shown to be in possession of the thing owned is on the person who claims he is not the owner. It was incumbent upon the accused to disprove this issue when he was placed on his defence. He failed to do so. 14. The sum total is that the prosecution have proven on a beyond reasonable doubt basis that the accused indeed cultivated cannabis. II. Whether the recovered plant materials were tested and determined to be narcotic drugs? 15. Section 48 (1) and (2) of the Evidence Act provides for admissibility of expert testimony as follows: “ (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.” 10. It was PW 1’s testimony that 327 suspected cannabis plants were uprooted (P. Exh.5) and 98 brooms of plant material (P. Exhibit 6). In addition thereto, 3kgs of unprocessed cannabis was also seized (P. Exh.7). They were forwarded to the government analyst vide an exhibit memo form dated June 22, 2023 by CPL Chemwetich for analysis to ascertain whether the materials were narcotic drugs. 11. PW 4, Stephen Tukei in his testimony testified that he received the suspected plant materials and that upon analysis using three types of test i.e. Fast Blue B Salt test, UV Spectroscopy test and High Performance Liquid Chromatography test, the plant materials turned out to be cannabis which is listed under the Narcotic Drugs & Psychotropic Substances Control Act of 1994 as prohibited plants. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/368/eng@2025-01-30 4

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12. This court having made findings as above it therefore follows that the prosecution have proven their case beyond reasonable doubt. Conclusion: 13. Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 of cultivating cannabis contrary to Section 6 (a) as read with Section 6 (b) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. DATED THIS 30TH DAY OF JANUARY, 2025 AT WAMUNYU LAW COURTS. HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE IN THE PRESENCE OF: For DPP: Achieng For Accused: Present Court Assistant: Letiktik https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/368/eng@2025-01-30 5

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