Republic v Malika (Criminal Case E001 of 2024) [2025] KEMC 313 (KLR) (23 May 2025) (Judgment)
Neutral citation:
[2025] KEMC 313 (KLR)
Republic of Kenya
Criminal Case E001 of 2024
AN Thuku, SPM
May 23, 2025
Between
Republic
Complainant
and
Catherine Eshituku Malika
Accused
Judgment
Introduction
1.This case is the first of its kind in this court. It arises out of amendments introduced to the Narcotic Drugs and Psychotropic Substances (Control) Act. The amendments were made in 2022 and came into effect on March 21, 2022.
2.The case has been before the court for fourteen months. Initially, the accused person, Catherine Eshituku Malika (“Catherine”) represented herself but later Prof. Nandwa came on record for the accused.
3.Catherine Eshituku Malika is charged with conspiracy to traffic narcotic drugs contrary to Section 4B (4) as read with Section 4B (5) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994.
4.The prosecution alleges that on October 25, 2023 at Kibera within Nairobi County, jointly with others not before court, Catherine conspired to traffic Narcotic Drugs namely cocaine to wit 750 grams with a market value of Kshs 3,000,000/= by exporting to Mahe Island, Seychelles.
5.Catherine was arraigned in court on January 5, 2024 when the charge was formally read to her. She entered a plea of not guilty. A bail hearing was conducted on the same day as the prosecution were opposed to her release on bond. The court requested the Probation Office to prepare a Pre-Bail Report for presentation in court. Catherine was denied bond on multiple grounds and has been in pre-trial detention. The Prosecution called eleven witnesses while Catherine was the only defence witness.
6.The rest of the judgment proceeds as follows - a summary of the Prosecution case followed by a summary of the Defence case, the Point for Determination, Case Law and Analysis, Interesting Factors and finally the Decision of the court.
A summary of the Prosecution’s case
7.Edwin Peter Shakava (“Edwin”) lives in Kawangware Stage 2 and is based at the Shell Petrol Station in Kibera. He has been driving a pink Toyota Vitz (registration KCX 540U) owned by Ida Mwayi for two years, working both offline and on the Bolt and Uber platforms. On the afternoon of October 24, 2023, his regular client Obeid called to arrange an airport trip, and Edwin quoted Kshs 2,000/=. About fifteen minutes later, Obeid confirmed that his customer accepted the fare and scheduled the pickup for 9:30 am on 25 October 2023 at his garage near Lindi Bridge on Langata Link Road. At the appointed time, two ladies appeared, one carrying a medium-sized box shaped pink traveller bag (which Edwin stored in the boot) and the other, Catherine Eshituku, who paid the full fare in advance via M-Pesa and then said goodbye. The remaining passenger, whose name Edwin did not learn, boarded and sat at the back left; she remained silent throughout the journey and was dropped off at Jomo Kenyatta International Airport(JKIA) Terminal 1A at around 10 am, after which Edwin wished her journey mercies and left. On 8 December 2023, the car owner informed Edwin that the DCI wanted to speak with him. He met the officer at the airport on 11 December 2023 and, after initially struggling to recall details, reviewed photos and his M-Pesa statement the following day and positively identified the accused(the fare sender) as the one in the dock. Edwin noted that it was his first interaction with her, whereas he has known Obeid, a mechanic whom he regularly drives into town to source motorbike spare parts, for almost a year.
8.Obeid Zaid Abdullah (“Obeid”), a garage mechanic, residing in Lindi Kibera, testified as a witness and identified Catherine as his sister-in-law, having been previously married to his brother, Hikmat Zaid Abdallah. On 24th October 2023, Catherine called him asking for help in getting transport because someone she knew was travelling to Jomo Kenyatta International Airport, though she did not specify who it was. Obeid contacted a taxi driver known to him as Edu (Edwin Peter Shakava), who arrived within 20 to 30 minutes. He then directed Edwin on where to pick Catherine up. Edwin later picked up a woman with Catherine. Obeid saw Catherine with another land and she is the one who entered the car. Afterwards, Obeid saw Catherine walking toward the shops. He did not speak to Catherine that day and could not identify the woman who entered the taxi. Obeid explained that Catherine occasionally asked him to arrange taxis for her, especially when travelling. He later recorded a statement after being informed Catherine had been arrested for drug-related charges, but he denied knowing anything about the offence or the other persons involved.
9.Philip Ekuom Erupe (“Philip”) is an immigration officer stationed at the Moyale Immigration Office. By the time he testified in this case Philip had worked in Moyale for three years and five months. His role is in clearing of persons to enter and exit Kenya. On the 28th day of December 2023 at around 9:00 am, Catherine presented herself at the Kenyan exit point on the Ethiopian side while travelling to Ethiopia. After scanning her passport, photo and biometric data, the system flagged her with a 100% match to a watchlist entry linked to narcotics trafficking involving Kenyans arrested in Asia. This alert came from the PISCES system, used by immigration to track flagged individuals, with justification from the DCI Anti-Narcotics Unit. Philip reported the match to his supervisor, Thomas Mwangangi, at the Kenyan entry office, escorted Catherine back across the border, and handed her over. He confirmed that the passport she used was valid and genuine and that she was not carrying anything illegal at the time. In the cross examination, Philip confirmed that Catherine’s passport was valid and genuine and that she was not found in possession of anything illegal.
10.Thomas Kyalo Mwangangi (“Thomas”) is an officer working in Moyale Border Control with the Department of Immigration and Citizenship Service. He has seventeen years of experience in immigration and has been in Moyale Border Office for almost two years. On December 28, 2023 he received a call from Philip who informed him of a passenger who was trying to depart to Ethiopia and upon standard procedure, he realised that there was a Stop Order from Mazingira House DCI on this passenger that warranted the person’s arrest. The justification for arrest was that she has been involved in narcotics trafficking in parts of Asia and Brazil with other Kenyans. He instructed Philip to take the passenger to the Kenyan side where he logged into the system (PISCES) and confirmed that there was indeed a warrant for her arrest and that the DCI should be informed. Thomas then called PC Arome to take over the matter. Catherine cross examined Thomas where he clarified that there indeed was a warrant for her arrest, bearing her full name, from the DCI and that it was reported by a one Mr Kimani from the DCI-HQ. Thomas also clarified that the reason for the arrest was that Catherine was wanted for dealing with narcotics in Asia and Brazil. Catherine had travelled to Laos, in Asia but he had not seen Brazil or India as one of the countries she had visited before.
11.Leonard Arome(“Leonard”) a police officer attached to DCI-ANU Moyale, and whose duties are general investigation on matters to do with drugs. He was PW5. On December 28, 2023 at around 8am, he received a call from an immigration officer by the name Mwangangi informing him that there was someone who wanted to be cleared but had a Stop Order placed on her. He went to the immigration office, saw the suspect and took her to their office where he informed his boss, CI Issa Osman of the situation. They then proceeded to make arrangements for her transfer to Nairobi so that the DCI headquarters could take over the matter. Mr Leornard Arome further took the suspect to Moyale Law Courts to seek custodial orders since the distance between Nairobi and Moyale was quite long. He was granted 8 days and before the expiry of these days, a team from DCI headquarters arrived and he was instructed to hand the suspect over to them for further processing. The officer identified the suspect who had the stop order as Catherine Malika and also stated that he handed Catherine’s passport, mobile phone and a receipt for Moyale Star Executive Bus dated December 27, 2023 to the DCI officers. During the cross examination, Leonard stated that he received a tip off that there was a suspect at 8:00 am on 28th December 2023 and that he does not know about Thomas saying that it was at 9:00am. He also told the court that he only arrested Catherine because of the Stop Order, he did not see the details of the stop order and that he did not search her since she is a woman.
12.Idah Jumah Mwayi, a resident of Satellite and a jua kali Uber operator. She bought a pink Toyota Vitz (registration KCX 540U) in 2020 and hired Edwin Shakava as her driver in 2021. Their arrangement was that he would remit earnings to her weekly, though later switched to fortnightly due to a slowdown in business. Edwin had full-time custody of the vehicle, operated independently without updating her on his trips, and has never previously raised any suspicions. On 25 October 2023, Idah received a call from an officer named Mrabu requesting her presence at JKIA Police Station with her driver. Although the officer did not disclose the reason over the phone, upon arrival and, reviewing the CCTV footage, she learned that Edwin had unknowingly transported a passenger who was later found in possession of drugs. She was asked to present the car’s logbook, sale agreement, and her identification card. She confirmed that the logbook is in her name and provided a copy in court, with the original having to be presented later as requested by the prosecution.
13.IP Peter Karanja, police number 240069, is an officer from the DCI Headquarters attached to the Transnational Organised Crime Unit (TOCU). On December 29, 2023, while on official duty at the Moyale Border Point, he was contacted by the DCI Moyale to liaise with PC Leonard Arome regarding a suspect who had been intercepted at the border and presented to the Moyale Law Courts under Miscellaneous Application E046/2023. Together with PC Mary, IP Karanja took custody of the suspect, now identified in court as the accused, along with an inventory of items, which included a Kenyan passport no. CK 55581, an Oppo mobile phone, the court custodial orders, and a bus receipt (serial no. 42223) from Moyale Star Executive Bus Company. The inventory, dated 29 December 2023, was signed by both him and PC Arome. He escorted the suspect to Muthaiga Police Station, arriving on 30 December 2023 at 2:23 am, where he handed over the suspect and exhibits to IP Denis Sitinei of the ANU. In court, he confirmed receiving and still being in possession of the listed exhibits, producing the inventory as Prosecution Exhibit 4. He clarified that although his statement may contain a typographical error referring to the accused as “him,” he personally escorted Catherine. He added that he did not search the accused, was not aware of any narcotic substances or related paraphernalia, and could not confirm the authenticity of the passport or the nature of the alleged offense. His role was limited to escorting the suspect.
14.James Wafula Kinyua (“James”) is a police officer with the Anti-Narcotics Unit, JKIA. James was at work on 30th December 2023 when he received a call from in-charge Madam Margaret Abae instructing him to join Sgt Lucy Warware in the office so as to proceed to Muthaiga Police station to collect a suspect who was arrested in Moyale. Upon arrival at Muthaiga police station, they found IP Sitinei and other officers together with the suspect who handed over the suspect, Catherine, and other exhibits which are;
- Passport number CK55581 in the name Catherine Malika Eshituku who he said was before the court on that day.
- Mobile phone make Oppo A5 Ace (blue) which was not before the court because the Investigating Officer had taken it for analysis.
- Misc. Application E046/2023 which requested for custodial orders from Moyale Law Courts dated 29.12.2023.
- Moyale Star Executive Bus receipt No. 42223 dated 27.12.2023 issued to Catherine and the accused was found in possession of it.
15.Corporal Lilian Munyinyi (“Lilian”), a forensic examiner with the DCI-HQ ANU and currently attached to the ATPU Cyber Crime Lab, testified that she received an Oppo mobile phone (Model CPH2179) from Col. Joseph Mrabu of JKIA-ANU on 31st December 2023, accompanied by an Exhibit Memo. The phone marked ‘C’ and belonging to Catherine Eshituku Malika, was subjected to forensic analysis using Cerebrite UFED. Lilian’s task was to extract data including WhatsApp messages, texts, call logs, contacts, images, and videos relevant to the ongoing investigation into conspiracy to traffic narcotics. The analysis revealed multiple communications, including WhatsApp conversations between “Kate”(Catherine) and individuals such as Chris, Jadu, and Nugu, discussing drug-related matters, arrests, bribery, and travel details. There were also financial transactions between Catherine and Stella Wairimu, including significant M-Pesa transfers and travel documents indicating trips to Seychelles and New Delhi. Images recovered showed substances on weighing scales, and Stella’s itinerary aligned with suspected trafficking activities. While Cpl. Lilian Munyinyi confirmed the data was intact and not deleted, she stated that she conducted the analysis without a court order, as authorized by the Exhibit Memo. During cross-examination, she affirmed the integrity of the data and clarified that the communication between Stella and Catherine, and the transactions, may suggest involvement in a trafficking conspiracy. Lilian also admitted she was unaware of Stella’s arrest or personal ties to Catherine, emphasizing her role was limited to data extraction and analysis. The forensic report, exhibit memo, and certificate of electronic evidence were produced in court as exhibits. Upon being recalled, Corporal Munyinyi presented a soft copy of the mobile phone extraction report related to Catherine Eshituku Malika in a DVD marked CM, which was admitted as Prosecution Exhibit 10. During cross-examination, she referred to a text message extracted from Catherine’s phone, in which a contact indicated they had been given Catherine’s number because they were looking for women to smuggle cocaine. Catherine responded by rejecting involvement in such dealings. She also confirmed that screenshots found on the phone included an article about a Kenyan woman arrested at Seychelles Airport. These additional digital materials were part of the forensic evidence collected during her investigation into conspiracy to traffic narcotic drugs.
16.Jonathan Limo (“Jonathan”) is an officer from the DCI, seconded to Safaricom Law Enforcement Office as a data analyst whose duties include receiving court orders, request letters from law enforcement agencies, extraction of mpesa statements, all data records, online fraud investigations and any other duty allocated to him. On the January 8, 2024, he received a court order vide Miscellaneous E001/2024 from JKIA Law Courts which requested for mpesa statements for the period between January 1, 2023 to December 31, 2023 for:
- 0706-xxxxxx
- 0723-xxxxxx
- 0711-xxxxxx
17.Joseph Mrabu (Joseph), an officer with the DCI-ANU JKIA, investigated a drug trafficking case involving Stella Wangari following a memo from Seychelles authorities dated November 6, 2023. The memo reported Stella’s arrest in Seychelles on October 25, 2023, after being found with 36 pellets of suspected cocaine in her stomach. Seychelles requested further investigation into the individuals behind the trafficking. Joseph confirmed Stella’s travel via Kenya Airways records. CCTV footage at JKIA showed her arriving in a Toyota Vitz, registration KCX 540U, registered to Idah Juma. Idah confirmed the car was being driven by Edwin Chakava at the time. Edwin stated he had been contacted by Obeid on behalf of Catherine Malika, who arranged for Stella's transport to the airport. Catherine paid Edwin Kshs 2,000 via M-Pesa. Joseph sought Mutual Legal Assistance from Seychelles and received Stella’s passport bio-data and photos of the drug pellets. Catherine was later arrested in Moyale on December 28, 2023, while attempting to leave the country. After interviewing Catherine and analyzing her mobile phone, forensic evidence revealed that she had been communicating with and coordinating drug trafficking activities involving Stella and others. Catherine could not explain several M-Pesa transactions linked to her. Pages 11, 17, 19, 21, 22, 25, 45, 47, and 53 of the forensic report (Prosecution Exhibit 8) were relied upon. Joseph concluded that Catherine was aware of and involved in the trafficking, given her coordination of Stella’s travel and payment for the taxi to the airport.
18.In the cross-examination, Joseph said he had been working as a DCI officer with 8 years of experience in the Directorate. He also had a background in trafficking investigations. However, Joseph said it was his first case involving conspiracy to traffic narcotics. He began investigations between 25th and 30th November 2023 and typed his own statement on 24th January 2024, admitting to a typo concerning the travel date of Stella, which was erroneously recorded as 25th November 2023 instead of 25th October 2023. Despite asserting that Catherine was charged based on evidence including communication records, he was hard pressed to explain the inconsistencies which arose regarding the forensic report’s timeline with Catherine charged on 5th January 2024. Yet the report purportedly dated 8th January 2024 and later referenced again as 28th April 2024. Joseph confirmed reliance on a cyber report to support the charge, though he acknowledged the lack of direct evidence showing that Catherine saw the drugs or knew about their presence. It was Joseph’s testimony that Stella spent the night at Catherine's house before being dropped at JKIA. Stella was not subjected to the ANU body scanner capable of detecting internally concealed drugs. The DCI officer admitted to having no knowledge of the specific equipment used for Stella’s detection at the airport. Whatsapp chats between Catherine and a number identified as "Chris" revealed coded language such as “cok”. Joseph did not know what Catherine did for a living despite having interrogated her. Re-examination clarified that Stella went through standard body scanners incapable of detecting drugs and reiterated the coded use of "cok" as a drug reference. The officer also noted that drug traffickers often exhibit patterns of receiving and quickly spending large sums of money, which was a basis for focusing on Catherine's financial transactions during investigations.
19.The prosecution closed their case on 14th of February 2025. Prof Nandwa asked for a total of 14 days to put in submissions under section 210 of the Criminal Procedure Code. True to their word, the accused and her advocate filed their submissions in hard copy form and the court delivered a ruling, determining that a prima facie case had been made thereby placing Catherine on her defence.
A summary of the defence case
20.Catherine Eshituku Malika (“Catherine”), testified that she is a mother of two and a former international sex worker originally from Butere, Mumias. She admitted to having met Stella Wangari in Saudi Arabia in 2022 while both worked as prostitutes, and upon deportation to Kenya, they maintained their friendship and continued in the same trade. Catherine explained that on 24th October 2023, she contacted Stella regarding a client named George but Stella declined, stating she was travelling abroad and would pass by Catherine’s house for makeup. The next morning, Stella arrived with a suitcase and handbag, asked for makeup, and requested help getting a taxi due to poor network connectivity. Catherine called her in-law, Obed, who arranged a taxi which Catherine paid for via M-Pesa. She said this was her only involvement. Catherine lost contact with Stella after her departure and later learned from DCI officers that Stella had been arrested in Seychelles on 30th December 2023.
21.Catherine denied any knowledge of Stella carrying drugs and stated the transactions between them were tied to their sex work, not drug trafficking. She admitted to previously speaking with individuals such as Chris, who accused Stella of stealing his belongings, and Fally, who offered her a job trafficking drugs, which she claimed she declined due to the low pay. Under cross-examination, Catherine said she knew where Stella would stay in Seychelles, although she insisted her intentions were to check on Stella’s wellbeing. She acknowledged being involved in a silver business, not narcotics, and clarified that references to drugs in her chats were either misunderstood or related to conversations she did not act upon. She also admitted to googling drug-related arrests out of curiosity. In re-examination, Catherine maintained that she was not part of any conspiracy, reiterating her refusal to engage in drug trafficking and affirming that the references in her communication were misunderstood or taken out of context. Prof. Nandwa filed final submissions and Ms. Rono for the prosecution said the State would rely on the record.
Point for Determination
22.Did Catherine commit the offence of conspiracy to traffick drugs contrary to section 4(B)?
Case Law and Analysis
23.The burden of proving a case rests on the Prosecution shoulders. The standard as always is proof beyond reasonable doubt. This is supported by the maxim that an accused person is innocent until proved guilty as captured in Article 50(2)(a) of the Constitution. Therefore, the main consideration for this court is whether the Prosecution adequately discharged its burden.
24.Section 4B(4) and (5) of the Narcotic and Psychotropic Substance (Control) Act states that:(4)A person who being in Kenya, conspires with another person who is also in Kenya to commit an offence under this Act in Kenya or outside Kenya commits an offence.(5)A person who conspires to commit an offence under this section commits an offence and is liable, on conviction, to a fine of not less than one hundred million shillings and to imprisonment for life.
25.Conspiracy, as defined in the Black’s Law Dictionary is:
26.The star witnesses in this case are Jonathan Limo, Cpl Lilian Munyinyi who testified as a cyber crime expert and Cpl Mrabu, the investigating officer.
27.Cpl Lilian Munyinyi presented a Mobile Forensic Examiner’s Report which she said contained information extracted from Oppo Model CPH2129. It was a phone seized from Catherine when she was arrested by the arresting officer, IP Karanja. It is in the Handing Over Notes from IP Karanja. There is a phone inventory presented as an exhibit where PC Wafula Kinywa received it at Muthaiga Police Station. This information confirms it is Catherine’s phone.
28.Cpl Munyinyi analyzed the call logs, whatsapp messaages and voice notes. She presented a lot of information to the court with special emphasis on the conversations between Catherine (the accused), and the following individuals – Stella, Cris, Nugu and Jadu.
29.The conversation between Cris and Catherine is what the court wishes to focus on. Catherine communicated with him using her line +254751xxxxxx while Cris communicated to her using +2348067xxxxxx. Their conversation centres around a person called Stella and the part that is relevant to this case is produced in a redacted form from the forensic report. It is as shown below:Kate: Hallo sir. Am that girl you spoke with Stella.Kate: Please can I talk to you.Kate: I can help you get your cok.Kate: Stelah is not arrested.Kate: Just send message.Cris: Please where is Stell??Kate: I can help you get her.Cris: Please help me.Kate: Because she is destroying things for everyone.Cris: Where is she now??Kate: Someone is tracing her at the moment I told Kate already.Cris: Please once you get her I will give you 500 dollars.Cris: Because I need my good back.
30.It was Cpl Mrabu’s testimony that drug traffickers do not make reference to the drugs by name. He pointed out that the reference to “cok” in the conversation above is to drugs. In his testimony, he presented information on the arrest of a person known as Stella Wangari Wairimu who was arrested in Seychelles. Stella had swallowed 36 pellets of cocaine weighing 750 grams. According to the case presented in court, Catherine and Cris are referring to this Stella.
31.Catherine in her defence explained that she and Stella are friends. In fact she said they were together on October 25, 2023 when Stella left her house. Catherine knew Stella, that they met in 2022 when they were working abroad as international prostitutes, a profession they continued to practice. It was Catherine’s testimony that Stella was travelling abroad to meet a client. Since Stella’s taxi hailing app was not working and she was short of funds, it fell upon Catherine to call and pay for the taxi. That is how Edwin showed up courtesy of Obeid, Catherine’s brother-in-law.
32.Catherine justified having all the information on her phone regarding Stella’s travel itinerary and stay on the basis that she was just being a caring friend. She was concerned when she realized that Stella did not check into the hotel as agreed.
33.But her concern is not reflected in her conversation with Cris. She makes reference to the fact that Stella “is destroying things for everyone.” Additionally, there are some tell tale signs in the information from Catherine’s phone about Stella’s travel.
34.These are seen in the documentation regarding Stella’s trip to India was for stay in India for seven days. The documentation extracted from Catherine’s phone shows that Stella was travelling for tourism; this is seen in the Statement of Purpose. The ticket on Catherine’s phone shows that Stella travelled to India using Ethiopian Airlines on October 10, 2023 from Jomo Kenyatta International Airport. She returned to Kenya using the same route on October 19, 2023. The ticket was bought on October 5, 2023 five days before the intended date of travel.
35.The other key witness in this case was Mr. Limo. According to the mpesa transactions between Catherine and Stella, Catherine transferred Kshs 500 to Stella.. On October 4, 2023 Stella transferred Kshs 9,000 to Stella and on October 9, 2024 right before her travel, Catherine transferred Kshs 31,900 to Stella. On October 13, 2023 Stella sent Kshs 21,000 to Catherine and then still on the same day Catherine sent Kshs 20,000 to Stella.
36.Stella had stayed one week in Kenya before setting off for Seychelles. Again, her itinerary was found in Catherine’s phone. The information in Stella’s ticket found in Catherine’s phone is the same as that presented by Cpl Mrabu in the E-ticket. The ticket was paid for while Stella was in India that is on October 14, 2023. The itinerary from Catherine’s phone shows the ticket was bought from Allison Brothers Darlingtons House 1st Floor, Edgware HA 87 EB United Kingdom. According to the public information from the company registry in the UK online, Allison Brothers filed a change of address1. More importantly the ticket was paid for in pounds which points to the involvement of other people beyond Catherine, Cris and Stella.
37.In terms of the mpesa transactions, the same pattern is seen. Catherine transferred Kshs 500 to Stella on October 24, 2023. Like her travel to India, Catherine’s stay in Seychelles was to be seven days. She was due to fly back to Kenya on November 2, 2023. Cpl Mrabu explained that as an office they requested for Mutual Legal Assistance. They received a letter dated November 6, 2023 from the National Central Bureau confirming that Stella travelled to Seychelles on Kenya Airways. She was arrested at the airport when the body scanner detected Stella had objects in her body. She emitted the objects in her stomach which were 36 pellets of cocaine weighing 750 grams.
38.Cpl Mrabu was hard pressed to explain how Stella went through Jomo Kenyatta International Airport without detection. He was also did not provide a satisfactory explanation on how he prepared the charge sheet to arraign Catherine on the charge of conspiracy to traffic drugs on January 5, 2024, yet the Forensic Report was not ready until January 8, 2024.
39.I have read the submissions filed by Prof. Nandwa and I thank him for them. He gives the definition of criminal conspiracy as:a.An agreement between at least two parties.b.The agreement is meant to be achieve an illegal goalc.All parties alleged to be involved have to have knowledge of the conspiracy and participate in the conspiracy in some way, andd.At least one person involved in the conspiracy has to make an overt act in furtherance of the conspiracy.
40.Based on all this, Prof. Nandwa argues that there was no evidence adduced of a connection between Catherine and Stella to traffick drugs. His argument is that the prosecution did not prove its case, thus creating reasonable doubt and therefore Catherine ought to be acquitted.
41.I stated at the beginning that this is novel case for this court. But other jurisdictions have handled cases involving conspiracy such as is cited in this case. Below is one example that is on all four similar to the case facing Catherine.
42.In the Court of Appeal – Criminal Division at the Royal Courts of Justice, the Court handled a reference from the Attorney General on the reference to enhance sentencing in a case touching on conspiracy. This was in Attorney General’s Reference No. 117 and 118 of 2005. I reproduce in part sections of the judgment to give context as follows:2.The conspiracy was evidenced by a total of six consignments of drugs, five of which were brought into this country by couriers and one of which was brought into Switzerland, with the intent that it should ultimately be transported to this country.3.The first and second consignments arrived on 19th January 2003, when customs officers stopped two women who were coming to this country from Tobago, arriving at Gatwick. As far as one of those women was concerned, she was found to have cocaine which amounted to 3.07 kilograms at 100 per cent purity in a false panel in the base of her suitcase. The other woman had cocaine which consisted of 2.75 kilograms at 100 per cent purity, also in a false panel in the bottom of her suitcase. They had both been recruited by these two offenders, who had arranged for their travel and accommodation; and there were telephone intercepts which made plain the connection between the offenders and the offenders and the two couriers.4.The third consignment came into Manchester Airport, again from Tobago, on 18th July 2003. The courier on that occasion had swallowed 95 pellets of cocaine amounting to half a kilo in weight at 100 per cent purity. It was clear that her travel to this country had been arranged by the offenders, and, once again, telephone contact had been made between the offenders before her arrival and between themselves and with her in Tobago; and she had Swaby's telephone number with her when she was stopped at the airport.8.The Attorney General submits that, bearing in mind the length of time over which this conspiracy lasted, which was about a year, the fact that the offenders were clearly in charge of these importations and had made all relevant arrangements in relation to them, the quantities of cocaine involved and, perhaps more important than any other aspect of the case, the fact that they were the ones who had recruited the couriers and had exposed them to the risks which eventuated of their being arrested and sentenced to substantial periods of imprisonment, and as far as one of them was concerned, exposed her to the risk of death by involving her in the importation of cocaine which she had swallowed, the sentence of 16 years imposed on each of them was unduly lenient.(Emphasis mine)
43.Therefore, based on the evidence presented to this court and the two sets of travel itinerary found in Catherine’s phone regarding Stella as well as the connection as shown in the messages between Catherine and Cris point to the fact that Catherine did engage in conspiracy to traffick drugs.
Interesting Factors
44.Before concluding, this court wishes to point out a factor that emerged in from the mpesa transactions presented by Jonathan Limo. In doing so, the court relies on the saying that “silence is not spoken here.” This is also in part because the history of this country is replete every decade with disappearances of those it seems, are gone without a trace. Some are big names as was mentioned recently in a media article on Julie Ward. Some are unknown to the general public but they remain known to their families. The anguish and pain of the not knowing the fate of a loved one is not minimized by race or economic status. Pain is pain. This is the reason for bringing this information in the public domain.
45.Catherine was involved in transactions with a person whose name is Margaret Nduta Macharia on June 26, 2023. It is not known if this person is the same person who was in news earlier this year. Margaret sent a total of Kshs 270 to Catherine in tranches. Additionally, Catherine’s mpesa transactions proceed on a day-to-day basis until June 30, 2023 and the next transaction is on July 19,2023. According to her passport there is a departure stamp from Kenya on June 30, 2023. Catherine also has an entry stamp into Moyale, Ethiopia dated June 30, 2023. The next stamp is an exit stamp from Ethiopia Immigration dated July 5, 2023. She has a single-entry visa to travel to Laos and enter on July 7, 2023. According to her passport, Catherine returned to Kenya on July 18, 2023. Margaret Nduta was arrested in July 2023. Only Catherine knows if she was the last Kenyan to see Margaret Nduta Macharia. She and her conscience will battle it out.
Decision
46.I find Catherine guilty of conspiracy to traffick contrary to section 4(B)4 as read together with section 4(B)5 of the Narcotic and Psychotropic Substances Control Act. She is to be convicted.
DATED, SIGNED AND DELIVERED AT JKIA LAW COURTS THIS 23RD DAY OF MAY 2025.NJERI THUKUSENIOR PRINCIPAL MAGISTRATEIn the presence of: -………… Court Assistant………… State Counsel………… Defence Counsel………… Accused…………… Language