Director of Public Prosecutions v Pore (Criminal Case E002 of 2023) [2023] KEMC 269 (KLR) (6 June 2023) (Judgment)
Neutral citation:
[2023] KEMC 269 (KLR)
Republic of Kenya
Criminal Case E002 of 2023
ZK Kagenyo, RM
June 6, 2023
Between
Director of Public Prosecutions
Republic
and
Ali Swaleh Pore
Accused
Judgment
1.The accused person was arraigned on the 3rd day of January 2023 with an indictment of trafficking in narcotic drugs contrary to section 4 (a) of Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. (sic).The particulars were that on the 29th day of December 2022 at about 1100 hours at Kwale town, Matuga sub-county in Kwale county within Coast region you trafficked cannabis weighing 381.98 grams with a street value of 11, 457/= kshs in contravention of the said act. (sic).
2.The accused denied the charges and a trial ensued. He conducted his case while in custody even though he had been granted personal bond of Ksh. 800, 000/= with one surety of similar amount with an alternative of depositing a cash bail of Ksh.400, 000/=.
3.On behalf of the state, the case was conducted by learned Principal Prosecution Counsel, Ms. Mwaura. The accused person was not represented. At all times of the trial, he was present in court. The matter was conducted in Kiswahili Language, or its interpretation, the language of choice by the accused.
DPP’S Case
4.The DPP, to discharge their duty under section 107 of the Evidence Act called a total of 3 witnesses.
5.PW 1, one Mr. David Ngumbao, an Analyst working with the Government Chemist told this court that on 30th December 2022, their office received the exhibits produced herein as P. Exh 1, weighed the same and found it to weigh 381.98 grams and thereafter analysed its chemical composition and found it to be cannabis.
6.NPS Service No. 111496 PC Allan Muriithi testified in his capacity as an arresting officer. He told this court that on 29th day of December 2022, together with his colleague PC Tum, PW 3 herein, they were instructed by their superior to respond to an intelligence report regarding a drug trafficker. He said that they set an ambush along the Kwale to Kwale town road at the Kwale Post Office area. While at that place, a motorcycle carrying the accused herein as a pillion passenger approached headed towards Kwale town. He testified that they flagged it down to stop but the rider did not stop and instead sped off towards Kwale town. In his evidence, he told this court that the two, swiftly reacted to the disobedience of the rider, boarded another motorcycle, and gave a hot pursuit to the fleeing motorcycle but it was in vain as they did not catch up with the motorcycle. Before they could give up on their efforts, they spotted the accused person at the Chaurembo hotel area who was walking on foot and pursued him and managed to arrest him and retrieved the bag he had, but which he had thrown off as he was being pursued. From that bag, they recovered the substance produced as P.Exh 1 and which was confirmed to be cannabis.
7.NPS Service No. 82960 PC Julius Tum testified in his capacity as both an arresting officer and the investigating officer. His evidence was similar to that of PW 2 save as to add that he produced the recovered exhibits and gave evidence of the steps in investigations.
8.After the evidence of PW 3, the Prosecution closed its case.
9.The accused person was on the 7th March 2023 placed on his defence under section 210 of the Criminal procedure Code, and section 211 of the Criminal Procedure Code and Article 50 (2) (i) having been explained to the accused person, he, in person, elected to exercise his right to remain silent and closed his case.
10.The Court invited the parties to put in their closing arguments but none opted to put in any, relying on the record in the court file.
11.Having heard both parties at their full lengths, the court retired to make its decision.
Analysis and Determination
12.The prosecution witnesses gave evidence that was subjected to cross examination by the accused. The rigorous cross examination of PW 2 and PW 3 by the accused person did not shake the evidence of the 2 witnesses and the circumstances of the arrest and recovery of the substances that was analyzed and found to be cannabis are apparent from their evidence. I have analysed the evidence of these two prosecution witnesses and I have no reasons to doubt their truthfulness and hence make a finding that indeed the accused was arrested in the manner in which the account was narrated by the arresting officers.
13.After his arrest and recovery of the exhibits, the same were subjected to chemical analysis and weighing and the results from the government chemist proved that the substance was cannabis that weighed 381.98 grams. I am therefore convinced that the factual basis of the case was proved beyond reasonable doubt.
14.However, I have had a look at the charges facing the accused person. The accused has been charged under section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, hereinafter the Act, that provides thus,Any person who trafficks in, or has in his or her possession any narcotic drug or psychotropic substance or any substance represented or held out by him or her to be a narcotic drug or psychotropic substance, shall be guilty of an offence and liable—a.in respect of any narcotic drug or psychotropic substance—ii.where the person is in possession of between 1—100 grams, to a fine of not less than thirty million shillings or to imprisonment for a term of thirty years, or to both such fine and imprisonment;iii.where the person is in possession of more than 100 grams, to a fine of not less than fifty million shilling or three times the market value of the narcotic psychotropic substance, whichever is greater, or to imprisonment for a term of fifty years, or to both such fine and imprisonment;
15.the Act defines trafficking under section 2 to mean, the importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof, but does not include—………..
16.For the purposes of this judgment and for reasons to be advanced later, this Court, well aware that the Act was amended in 2022, through the Narcotics, Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022 shall refer to that previous version as the Amended Act.
17.This court observes that the definition of the term trafficking is broad and encompasses 12 distinct ways in which one may traffick in drugs. It therefore offends the very rules of drafting the charge sheet when the prosecution accuses the accused person generally and leave it open for the accused to be court by any one of the 12 hooks therein.
18.An accused person is entitled to particulars that are sufficient to inform him of the charges he is facing. I dare say that the manner in which the charges were drafted could not afford the accused the benefit of knowing the specific manner in which he was accused of trafficking in the narcotics.
19.In the past, the Court of Appeal in Gabriel Ojiambo Nambesi v Republic [2007] eKLR observed and guided thus,
20.It is my finding that to the extent that the prosecution was to demonstrate how the accused trafficked the cannabis, this was done neither at the drafting of the charges stage nor at trial by proposing and leading any evidence suggesting the manner in which the accused was trafficking the narcotics.
21.The Court in the Gabriel Ojiambo case (Supra) after making its finding as above pronounced itself thus,
22.Similarly, and as I earlier observed, I have no doubt that the accused had in him possession of the cannabis going by the literal and dictionary meaning of the word possession.
23.However, I note the broadened element and nature of the offence of possession under the present Act as compared with the Amended Act. Section 4 (a) of the Amended Act stated that,
24.It is my observation that parliament in 2022, deemed it fit to dislodge a certain nature of possession from section 3 of the Act and to equate it, being the offence of possession for non-personal consumption, which was an offence under section 3 (2) (a) of the Amended Act with trafficking and hence, possession of any narcotic drug or psychotropic substance, unless it falls under section 3 (2)(a) of the present Act is similar to trafficking and cannot be said to be a minor and cognate offence to trafficking but an equal offence that has to be preferred on its own and cannot be substituted thereof under either section 179 (1) or 179 (2) of the Criminal Procedure Code.
25.Section 3 (1) of the Act provides that,
26.Section 3 (2)(a) of the Amended Act provided that,
27.Section 3 (2) (a) of the Act under which the accused is charged provides that,
28.It would appear that section 3 (1)(a) of the Act post 21st March 2022, contemplated the punishment of consumers only and as observed earlier before in this judgment, any other possession of narcotic drugs and psychotropic substances was grouped together and likened to trafficking.
29.The accused person exercised his right to remain silent at the defence stage and it could not be discernable on the manner in which he was in possession of the narcotics, whether for his own consumption or for other reasons as contemplated under section 4 (a) of the Act.
30.This Court is therefore presented with a guilty person but short of the penalty provision of the same as it is my considered view that based on the introductory remarks in section 3(2) of the Act, it was not the desire of the legislature that the offence under section 3(1) of the Act could be punishable under general penalty section 83 of the Act.
31.Before penning off, this court would like to point out two issues that arose during trial. Firstly, I note that the accused person was arrested on 29th December 2022, during the day at 1100 hours, which was a Thursday. However, the Accused person was presented to Court on the 3rd January 2023 without an explanation why he was not presented to court on the 29th December 2022 as from 1101 hours to 1700 hours which were ordinary court hours or even a worst case scenario on the 30th December 2022 a Friday which was an ordinary court day. This court cannot tire from remind the state on the need to observe the rights of an accused person as guaranteed under Article 49 (1)(f) of the Constitution and the obligation of the State not to curtail the rights of its citizens unjustifiably and unreasonably as in this case it would appear that the accused was unreasonably and unjustly detained in police custody for more than 109 hours without production to court and the state treated it as a normal phenomenon.
32.Secondly, the court observes that PW 3 arrested the accused person together with PW 2 and it is PW 3 who ended up being the investigating officer. It might not be codified in any book of law or standard operating procedures, but it is highly desirable in such circumstances as the accused was arrested in, an arresting officer not to be the investigating officer of the matter he is potentially subject of investigations.
Disposition
33.From the foregoing, I make a finding that the DPP has furnished evidence before this court proving beyond reasonable doubt that indeed the accused person was in possession of narcotic drugs namely cannabis which is proscribed by section 3 (1) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 and I thus find him guilty of the same pursuant to the provisions of section 179 (2) of the Criminal Procedure Code as read together with section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 and convict him under section 215 of the Criminal Procedure Code for the offence of possession of narcotic drugs namely cannabis which is proscribed by section 3 (1) of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994.
34.Given the position this court finds itself in, the court shall fix this matter for sentence submissions before it gives its final directions owing to the noted deficiency and for the said purpose, the case shall come up on 29th June 2023.
35.The exhibits produced before this court as P.Exh 1, 6 and 8 being the 8 rolls of cannabis, the bag and the blue carrier bag shall be destroyed under the supervision of this Court’s Executive Officer, after the expiry of 14 days from today and a certificate of destruction of exhibits placed in this file by the Executive Officer.
36.The accused person is hereby informed of his right to lodge an appeal against this judgment and the conviction at the High Court within 14 days from today’s date if dissatisfied with this court’s finding.
JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT KWALE ON THIS 6TH DAY OF JUNE 2023.KIONGO KAGENYORESIDENT MAGISTRATEIn the presence of;Mr. Archibald Kimbada- Court Assistant.Ms. Wangari Mwaura, Principal Prosecution Counsel, for the StateAli Swaleh Pore - The Accused Person