Republic v Musembi (Criminal Case E009 of 2025) [2025] KEMC 374 (KLR)

rolls of cannabis and a broom of unprocessed cannabis weighing about 600 grams. The team pursued him into his mother’s house, where he was found hiding beneath her bed. He was arrested, and at the edge of the compound officers uprooted 325 stems of cannabis. 3. Following his arrest, the accused was placed in police custody as investigations commenced. Upon completion, he was charged with: a. Count I: 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. b. Count II: Possession of cannabis contrary to Section 3(1)(a) as read with Section 3(2)(a) of the same Act. 4. Upon the close of 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. 5. Charles Musembi Mumbua (DW1), a mason by trade, denied ever being arrested in possession of cannabis on the material date. He lamented that at 0400 hours police officers descended upon their homestead, broke into the main house — which belonged to his absent cousin — and found no one inside. Unable to gain entry there, they turned to his room, which he had opened in curiosity to establish the source of the commotion. It was at that moment, he testified, that he was arrested. 6. He was first taken to Mwala Police Station and thereafter to Masii Police Station, where he remained in custody for four days. He was firm that he had been arrested with nothing and that the charges were false. He pointed out that PW1 did not specify which house in the compound allegedly contained cannabis. He further noted that PW2 testified he was arrested on allegations of possessing eleven rolls of Page 2 of 9 MCCR E009/25

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cannabis, yet his written statement referred to seven rolls. Lastly, he emphasized that the area chief failed to disclose the identity of the informer.” ANALYSIS 7. In analyzing the case at hand, the court notes that the accused was charged with the offence 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 offence 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.” 8. From the foregoing, the court distills the following issues for determination: i. Whether the recovered plants and/or substances were confirmed to be narcotic drugs? ii. Whether the accused cultivated plants that were narcotic drugs? iii. Whether the accused was found in possession of narcotic drugs? I. WHETHER THE RECOVERED PLANTS AND/OR SUBSTANCES WERE CONFIRMED TO BE NARCOTIC DRUGS? 9. 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: Page 3 of 9 MCCR E009/25

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“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 deflect 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, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 10. DAVID CHERUIYOT BOIT (PW 5) a gazette government analyst holding a bachelor of science degree from Moi University with over 20 years’ experience testified that he received the following exhibits from IP Erastus Njonjo; 7 rolls of dry plant material weighing 3.5 grams and 325 stems of dry plant material weighing 342 grams. He also received one broom of dry plant material weighing 206 grams. In his testimony, he stated that they were accompanied by an exhibit memo form dated January 09, 2025. He used three (3) tests to analyze the dry plants. First Blue B Salt Test, UV Spectroscopy Test and a confirmatory test called High performance Liquid Chromatography which found the said materials to be “Cannabis.” 11. The accused did not raise any questions in cross examination. The Government Analyst Report was produced as P. Exh. 3 and therefore the court finds that the prosecution proved it’s case on a beyond reasonable doubt on this first limb falling for determination. II. WHETHER THE ACCUSED CULTIVATED PLANTS THAT WERE NARCOTIC DRUGS? 12. This court finds that on this limb the prosecution did not provide any direct evidence linking the accused to cultivation. The people or person who gave intelligence to the prosecution were not called to testify as to how they knew the accused was cultivating cannabis. If their security was in danger the prosecution would have employed witness protection mechanisms to enable the witnesses to testify. Page 4 of 9 MCCR E009/25

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13. Be that as it may, there is only circumstantial evidence, which the court should make a determination upon. Circumstantial evidence should not be disregarded merely because it is not direct evidence. Where a court finds that the circumstances form a complete and unbroken chain to infer guilt, excluding any reasonable hypothesis, then a conviction may issue. See the Court of Appeal case of REX v KOSKE & ANOR (1949) 16 EACA 135. 14. In this case, this court finds that the totality of the evidence produced and the circumstances of it unerringly point to the guilt of the accused rather than his innocence with regards to cultivation of cannabis for the reasons below: a) PW 1 who is the area chief of Kyawango Sub-location stated in examination in chief that the accused had a cannabis plantation according to intelligence reports. When the raid was conducted in the wee hours of the morning a plantation of cannabis was actually found on the edge of the family land where the accused resides; b) On cross-examination of key witnesses, the accused brought out the fact that he was not the only one living in that home and therefore any other person would have planted the said cannabis on the said parcel of land. On this issue, does mere proximity prove he cultivated the said cannabis? c) The court is still satisfied that he did for the following reasons, PW 1 and PW 4 are local administrators where the accused resides. They both testified that they have been investigating him over a long period of time prior to the sting operation. They not only suspected him but had intelligence that he was in that line of work. The accused did not cross-examine on this issue.; d) The fact that the accused did not dispute that the cannabis was grown on family land and did not point a finger to any other member of the family leaves a lot to be desired. Section 119 of Page 5 of 9 MCCR E009/25

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the Evidence Act provides that - The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. e) The fact that on the day of the raid, the accused ran into his mother’s house and hid under the bed an issue that was corroborated by 3 witnesses. PW 2 a police officer said the accused also led them to the farm. PW 2 said the unprocessed broom of cannabis was found under his bed after he had disappeared. Unprocessed cannabis in the common course of natural events come from a cannabis plant in a farm.; f) In his defence testimony, the accused failed to displace the evidence or linking the cultivation of cannabis to any other person within his family or outside it. The said plantation was within the compound and easily ascertainable.; g) Neither did the accused cross-examine the chief and assistant chief as to whether there was a grudge between them. The only logical conclusion this court can draw is that the operation led to the right results which led to the charges at hand. 15. 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. The sum total is that the prosecution has proven on a beyond reasonable doubt basis that the accused indeed cultivated cannabis. III. WHETHER THE ACCUSED WAS FOUND IN POSSESSION OF NARCOTIC DRUGS? 16. PW 1 the area chief stated that on the date of the operation the accused ran away from his room into his mother’s house. Upon Page 6 of 9 MCCR E009/25

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entering the said room, they found seven rolls of cannabis and a broom of cannabis there. PW 2 PC Benard Mburu stated that the there were 11 rolls of cannabis and a broom of unprocessed cannabis found under the bed of the accused when he fled the room. Later upon being crossexamined and showed his statement, he admitted that there were 7 rolls. PC Joseph Maina also testified saying the 7 rolls of cannabis and the unprocessed broom of cannabis was found under the bed of the accused. PW 4 the area assistant chief also testified that the said 7 rolls of cannabis and unprocessed broom of cannabis was found under the bed of the accused. 17. Though the accused stated that he was arrested without anything, four witness testimonies corroborated each other on this aspect. The minor inconsistency of the number of rolls recovered by PW 2 does not do away with the direct testimonies of 4 witnesses. In any event he was cross-examined and he confirmed that there were 7 rolls which was indicated in his witness statement. The inconsistency does not indicate untruthfulness or evidence that is framed up. In the Court of Appeal case of Philip Nzaka Watu v Republic [2016] KECA 696 (KLR) with regard to this issue it was held as follows: “However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” Page 7 of 9 MCCR E009/25

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18. This court finds the prosecution testimony believable. Even though the accused had run ff to his mother’s house, he ran from that room and it therefore pre-supposes that he had the knowledge, control and constructive possession of the cannabis found under his bed. Section 4 of the Penal Code with regards to possession even when the person possessing it is not present at the scene provides as follows: “"possession"— (a) "be in possession of" or "have in possession" includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person.” 19. From the foregoing, the court has no doubt that the accused was in possession of the said narcotic drugs that were found under his bed i.e. seven rolls of cannabis and a broom of unprocessed cannabis. Whilst all evidence pointed to trafficking or dealing in the said narcotic drugs, the prosecution charged the accused under possession of narcotics for personal use. These lapses should cease. Be that as it may, the benefit goes to the accused. CONCLUSION: 20. Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 the accused is hereby convicted of the offences 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 as well as possession of cannabis contrary to Section 3(1)(a) as read with Section 3(2)(a) of the same Act. Dated this 22 ND day of DECEMBER, Law Courts. Page 8 of 9 MCCR E009/25 2025 at Wamunyu

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HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE IN THE PRESENCE OF: For DPP: Mati K. For Accused: Present Court Assistant: Kamoni N. Page 9 of 9 MCCR E009/25

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