MARTIN OCHIENG V REPUBLIC [2012] KEHC 3467 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT MERU

Criminal Case 104 of 2011

MARTIN OCHIENG……………..……...........…………… APPELLANT

VERSUS

REPUBLIC……………………………..……………..RESPONDENT.

JUDGEMENT

The Appellant Martin Ochieng was tried for one count of Trafficking in Narcotics Drugs contrary to section 4(a) of the Narcotics Drugs and Psychotropic Substances Control Act (hereinafter the Act). The particulars of the charge alleged that the Appellant in company with others not before court was found trafficking in narcotic drugs by transporting 240 stones of cannabis Sativa in Motor Vehicle Reg. No. KAG 290 B.The Appellant was convicted for the offence and sentenced to life imprisonment.

The Appellant was aggrieved by the conviction and sentence and therefore filed this appeal.

On appeal, the Appellant relied on his supplementary amended grounds of applied under section 350(2) (v) of the CPC.There are six grounds of appeal which I summarize as follows:

1. That the learned trial magistrate erred in law and fact when she misdirected herself that the prosecution had proved the charge whereas the mode of trafficking was not disclosed under the charge.

2. The learned trial magistrate relied on contradictory evidence plea.

3. that the learned trial magistrate relied on the evidence of PW12 3 and 4.   His evidence should have been treated in caution in the absence of prove of the ownership of motor vehicle KAE 073E.

4. That the Appellant’s fundamental rights as provided for under section 72 (3) (b) o9f the old Constitution and Article 49 (f) of the current constitution were violated.

5. That the prosecution did not prove the Appellants participation in the crime.

6. That the learned trial magistrate erred in law by imposing a life imprisonment sentence which was harsh and excessive.

The Appellant relied on written submission and was unrepresented during this appeal.

This appeal is opposed.Mr. Moses Mungai learned Counsel for the State urged the court to uphold the conviction and the sentence.

This is a first appellate court and  as such I have subjected the evidence that was adduced before the lower court to a fresh evaluation and analysis, while bearing in mind my limitation having not seen or heard any of the witnesses, and giving due allowance for it. In the case of OKENO V. REPUBLIC [1972] EA 32the role of a first appellate Court is given as follows:

“An Appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination [Pandya vs. Republic (1957) EA 336] and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala v. Republic [1957] EA 570. ) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424. )”

The prosecution called ten witnesses.The brief facts of the case are that John Kibet PW1 was overtaking a bicycle in his motor vehicle at Subuiga, when he was hit from behind by a motor vehicle Reg. KAQ 920B.   Both cars tipped to the side.   PW1 said that two people came to where he was inside his car and asked him whether he was alright or drunk.   He said that one of the two people was the Appellant in this case.   Eventually colleagues of PW1 from Kisima Farm, PW2, PW3 and PW4 went to the scene and guarded the vehicle                                                                                                                                              as PW1 went to report to the police.   Eventually the police, PW5 and 7 went to the scene and while there, they received a report as a result of which they arrested the Appellant and recovered some plant material wrapped into balls. These were later tested by a Government Chemist, PW10 who said that the plant material was bhang.

The prosecution also adduced evidence through PW6 and 9 to show that the vehicle KAQ 920b was hired by PW6 from PW9.   PW6 in turn hired it out to two people one Betty and one Vincent Omondi Okech.   It was during the time that the vehicle was hired out to the latter two that it was involved in an accident with PW1’s motor vehicle.

The Appellant in his defence before the lower court merely stated his name as Martin Ochieng and said he was a matatu driver. The Appellant stated that on 24th May, 2009 he got into an accident.   He said that some things were gotten from the bush about 400 meters, and that he was then arrested and over kept by the police for 4 days before being brought to court.

The prosecution had the burden of proof in this case, to prove that the Appellant was trafficking in narcotic drugs as alleged in the charge. I have analyzed the evidence before the court and find that it was disjointed. PW1 who was the first person to encounter the Appellant did not see who was driving the motor vehicle that collided with his. In fact from his evidence he was noncommittal whether the Appellant came out of the accident vehicle. In any event his evidence is unreliable since he says two people alighted from the other vehicle and then he was approached by two people who wanted to find out whether he was okay or drunk. Having been so close to the other vehicle PW1 should have been able to tell who the driver was, if at all he saw anything.

PW2 did not identify who was removing things from KAQ. All he saw was the Appellant being chased by police and being arrested.   PW3 was given the information by PW2 that someone was hiding things in the bush after removing them from the car KAG.   PW4 said that he saw the Appellant removing things which were tied in bed sheets from the vehicle and placing them by the road side.There was a contradiction between the evidence of PW2 and 4 as to whether the things removed from the car were hidden in the bush as PW2 stated or were kept by the road side as PW4 stated.   There was a disconnect in the evidence of the prosecution between what PW4 saw the Appellant removing from the car, and the item that was recovered by PW5 and 7.   PW5 and 7 who recovered the bhang did not find the Appellant in possession of it, and according to them they recovered it from the road side.

PW4 said he saw the Appellant removing the things from the car described as bed sheets and was not present at the time of the recovery of the bhang, and therefore there is no evidence to connect the bhang recovered by PW5 and 7 and the bed sheet wrapping PW4 saw the Appellant with.

The Appellant was charged with Trafficking Narcotic Drugs to wit cannabis sativa, contrary to section 4(a) of Act No. 4 of 94.   Under the said Act trafficking is defined as

“means the importation exportation, manufacture, buying, sale, giving, supplying, storing administering conveyance delivery or distribution by any person of a narcotic drug or psychotropic drug …….”

The Appellant in ground 1 of his petition urged that the mode of trafficking was not disclosed in the charge. The particulars of the charge were clear that the Appellant with others was trafficking narcotic drugs by transporting it.   The particulars of charge have disclosed the alleged mode of trafficking.

In ground 3 the Appellant urged that it was necessary for the prosecution to prove the ownership of the vehicle KAE 073E. I don’t agree with the Appellant because that vehicle was being driven by PW1, and was not the one alleged to have been conveying the narcotic drug. It is in connection with vehicle registration no. KAQ 920B that the prosecution needed to establish a nexus with the Appellant. The evidence adduced in this case was not clear that the Appellant was ever in the vehicle as earlier stated. PW1 did not see him alight from that vehicle.   No one else saw him alighting from the vehicle. Further,  apart from PW4 no one else said that they saw him removing anything from the vehicle.   As stated PW4 did not see any bhang, she merely saw bed sheets. She was not present when the drug was recovered. There was therefore no connection between the Appellant and the recovered drug.

The prosecution called witnesses to show the ownership of the vehicle KAQ. There was no doubt that PW9 was the owner of the vehicle.However the person who hired it from PW6 was neither an accused person nor a witness in the case.   PW6 was very clear that he gave the vehicle to Vincent Omondi and Betty.   The Appellant does not answer to either of those two names.   The prosecution did not prove any nexus between the Appellant and the vehicle in question. The prosecution evidence was disjointed and there was no serious attempt made to establish a firm nexus between the Appellant the vehicle and drug. The mere fact that the Appellant was seen running is of no consequence without this nexus.

The prosecution failed to call very important witnesses in the person of Betty and Vincent Omondi. These witnesses may have been able to establish the required nexus between the Appellant and the drugs, if at all it existed.

I find that the evidence before the court was insufficient to establish this very serious offence of trafficking in narcotic drugs.   I find that in view of the inconsistency, contradiction and the missing links in the evidence of the prosecution, the conviction entered against the Appellant was unsafe and ought not to be allowed to stand.

Consequently I do allow the Appellant’s appeal, quash the conviction and set aside the sentence.

The Appellant should be set at liberty forthwith unless he is otherwise lawfully held.

DATED, SIGNED AND DELIVERED THIS 5TH JULY, 2012

LESIIT, J.

JUDGE.