John Odongo Banaba v Republic [1998] KECA 51 (KLR)

IN THE COURT OF APEPAL

AT MOMBASA

(Coram: Chesoni, C.J., Kwach & Tunoi, JJ.A

CRIMINAL APPEAL NO. 79 OF 1997

BETWEEN

JOHN ODONGO BANABA……………………………APPELLANT

AND

REPUBLIC …………………………………………..RESPONDENT

(Appeal from a conviction and judgment of the High Court of Kenya at Mombasa (Lady Justice Ang’awa) dated 3rd October, 1997

In

H.C.CR.A NO. 354 OF 1996

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JUDGMENT OF THE COURT:

John Odongo Banaba (the appellant) was convicted by the Acting Resident Magistrate, Mombasa, on a charge of being in possession of cannabis sativa (bhang) contrary to section 10(c) of the Dangerous Drugs Act, and sentenced to three years imprisonment. The particulars of the charge alleged that on 6th September, 1991, at 4. 30 p.m. at Port Reitz in Mombasa, he was found in possession of 7 kg of bhang which was not in a form of medicinal preparation.

Acting on information received, Corporal Immanuel Mwasi of Kilindini Anti-Narcotics Section and Chief Inspector Nicholas Kamwende of the Provincial C.I.D. Mombasa, raided a house at Port Reitz Corner. It was a Swahili type house and they found the appellant lying on a bed in one of the rooms. They carried out a search and under the bed on which the appellant was lying, they found half a sack of bhang. They arrested the appellant and carried away the bhang. In the same house, though not in this room where the appellant was found, there were two women whom the appellant claimed to be his wives. Both women were interviewed by the police but were not arrested.

In his sworn statement, the appellant admitted that the bhang was found under the bed on which he was lying but denied any knowledge of its presence there as the house belonged to one of his wives. He added, for good measure, that he had gone to that house just to have a rest. The learned magistrate rejected the appellant’s explanation and convicted him. His appeal to the superior court against both conviction and sentence was dismissed by Ang’awa J. on 3rd October, 1997 and the appellant now appeals to this Court.

Mr. Magolo, for the appellant, submitted that the prosecution did not prove the charge against the appellant beyond reasonable doubt and that both the trial and first appellate courts erred in law in rejecting the explanation put forward by the appellant, namely, that he was not the owner of the house in which the bhang was found by the police. His wives were competent but not compellable witnesses. See section 127(2) of the Evidence Act (Cap 80). They could not be called by the prosecution to give evidence against the appellant but there was nothing to stop the appellant calling them to give evidence in his own defence. In the circumstances in which the offence was committed, it is perfectly understandable why the appellant refrained from taking that risk. If they had been called, they would have been obliged to testify on oath and would have most probably incriminated themselves.

There is no basis upon which we can disagree with the concurrent finding by the trial magistrate and the learned Judge that the bhang was found in the possession of the appellant. We are satisfied that the appellant was properly convicted. His appeal accordingly fails and is dismissed.

Dated and delivered at Mombasa this 21st day of January, 1998.

Z.R. CHESONI

CHIEF JUSTICE

R.O. KWACH

JUDGE OF APPEAL

P.K. TUNOI

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR