Charles Mutinda Kavemba V Republic eKLR
|Criminal Appeal 44 of 1992||16 Dec 1992|
Johnson Evan Gicheru, Joseph Raymond Otieno Masime, Mathew Guy Muli
Court of Appeal at Nairobi
Charles Mutinda Kavemba v Republic
Charles Mutinda Kavemba v Republic eKLR
Charles Mutinda Kavemba v Republic
Court of Appeal, at Nairobi December 16, 1992
Masime, Gicheru & Muli JJ A
Criminal Appeal No 44 of 1992
(Appeal from a judgment of the High Court of Kenya at Nairobi (Justice DC Porter) dated the 27th day of June, 1991 in the High Court Criminal Appeal No 863 of 1990)
Criminal law - possession- criminal possession - essential elements of possession.
Criminal law-possession-key to a room containing heroin found in appellant’s hotel room-whether appellant can be deemed to be in possession of the room containing heroin.
The appellant’s first appeal having been dismissed by the High Court, filed a second appeal to the Court of Appeal against his conviction and sentence for the offence of being in possession of diacetylmorphine commonly known as “heroin” contrary to rule 9 of the Dangerous Drugs Rules as read with section 14 (1) (c) of the Dangerous Drugs Act, cap 245 Laws of Kenya and punishable under section 18(2) of the Act.
The brief facts were that on 9th March 1989, acting on information or a tip off, Chief Inspector Charles Mulandi (PW5) in the company of Corporal Samuel Kipgentich (PW1) and other police officers proceeded to Keekorock road where in an office, they met a man called Kingoo who, on being searched, was found to be in possession of what looked like heroin. While this was going on, the appellant appeared in the scene and was also searched and found in possession of Kshs 400/-. He admitted that the office was his. The office was also searched and nothing of evidential value was found. The appellant told the police that he lived in Naseems Annex Lodge and led the police there. He opened room No 6 which was searched and a sum of Kshs 18,000/= in a brown bag was found. On searching further, Chief Inspector Mulandi found a key in the pocket of one of the coats in the wardrobe labeled “1”. The appellant denied knowledge of room “1” but led the police there and opened the door with the key “1”. On one of the beds in the room No 1 were wrapped papers. Chief Inspector Mulandi opened one of the wrapped papers and suspected its contents to be heroin. He arrested the appellant and took the contents of the wrapped papers to the Government analyst who confirmed that the contents were in fact heroin. The appellant was charged with the offence and the thrust of the prosecution’s case as led during the trial was that the appellant was the occupant of room number 1 hence in possession of the heroin as he was in possession of the key to that room.
The appellant in his defense denied possession of the heroin stating that he was not the occupant of room 1 but someone else, who had booked out on the previous day.
1. In order to establish possession, actual or constructive, there must be evidence to establish exclusive control of room No 1 by the appellant to the exclusion of all other persons.
2. Since room No 1 was locked at the time, there must be evidence to establish that no other person had access to that room by showing peculiar nature of the lock and the absence of any duplicate or a master key which could open the door to that room
3. The prosecution did not prove guilt of the appellant to the required standard of beyond reasonable doubt. The appellant was entitled to the benefit of the doubt that he was not the only occupant of room No 1 to the exclusion of all others at the material time.
Ruwala v R  EA 570
1. Dangerous Drugs Act (cap 245) sections 14(1)(c); 18(2)
2. Dangerous Drugs Rules (cap 245 Sub Leg) rule 9
Mr Odhiambo for the Appellant