Contract Law-sale of shares agreement-suit climing that the 1st and 2nd defendants refused and neglected to transfer the said shares to the plaintiff and persist in the said refusal in flagrant breach of the said sale and purchase agreement-plainitff claiming that he has completed his part of the bargain-admissibility of evidence- effect of-court jurisdiction-Orders XXXIX rules 1,2,3 and  9,  Order  XL  rule  1, , Order  2  Rules  21  &   27  of  the  Civil Procedure Rules

CRIMINAL APPEALN NO.21 OF 1998

CRIMINAL LAW-Possession-definition of.

EVIDENCE- possession of Narcotic drugs- where accused are found in a room in possession of narcotic drugs- where all evidence point out that they were in possession of the drugs- where its not established that the appellant is the owner of the house where drugs are found- whether this is necessary to establish the issue of possession.

SUMMARY OF THE FACTS

Ahmed Mohammed Ali (the appellant), Ahmed Salim and Abdulrahman Mohammed, were tried and convicted by the Senior Resident Magistrate, Mombasa, on an indictment containing two counts of being in possession of narcotic drugs contrary to section 3(1) of the Narcotic and Psychotropic Substances (Control) Act (the Act), as read with sub-sections 2(a) and (b) of the Act. The first count alleged that on the 12^th day of November, 1995, at Kisauni village in Mombasa District, within Coast Province, the accused were found in possession of 26 sachets of Diacentromophine narcotic drug, commonly known as heroine, which was not in its medicinal preparation form. In count two, it was alleged that on the same date at the same place, they were found in possession of one roll of cannabis sativa (bhang). The appellant and his co-accused were each sentenced to ten years imprisonment on count one, and three months imprisonment on count two which sentences were ordered to run concurrently.

The appellant and the other two accused persons appealed to the superior court against both conviction and sentence but their appeals were dismissed. Ahmed Salim and Abdulrahman Mohammed filed a joint appeal to the Court of appeal (Criminal Appeal No. 38 of 1997) but the appellant filed his own appeal. Criminal Appeal No. 38/97 came up earlier for hearing and was determined on 14^th July, 1997. The appeal was allowed and the conviction of Salim and Mohammed quashed.

According to the evidence, police raided a house at Mlaleo in Kisauni area and found five persons in a small room smoking what appeared to be bhang and they appeared to be drunk. The officers searched the men and the room. Under the table between the feet of the appellant, who was seated at the table, they saw rolls of paper resembling cigarettes. They picked up these and they were 26 in number. They contained white powder. The same were later examined and certified by the government chemist to be heroine, and bhang .Two of the suspects including one who was alleged by the appellant to have been the owner of the house in which the drugs were found, were released in suspicious circumstances by one Inspector Wanyonyi and were never charged.

Mr. Gacuhi, counsel for the appellant, submitted that the prosecution’s failure to prove that the appellant was the owner of the house in which the drugs were found and the decision not to call the two suspects who were released, as witnesses was fatal to the appellant’s conviction.

HELD

1. The Court takes the definition of possession to mean, not that any legal title has to be proved, nor that access to the complete exclusion of all other persons has to be shown, but that a possessor, must have such access to and physical control over the thing that he is in a position to deal with it as an owner could to the exclusion of strangers.

2. . The court is satisfied that on the evidence on record the appellant and the other four persons in the room with him were in possession of the drugs within the meaning of section 3(1) of the Narcotic and Psychotropic Substances (Control) Act and the fact that two of them were set free by inspector Wanyonyi and not called by the prosecution to give evidence at the trial does not make any difference to the appellant’s criminal responsibility.

Appeal dismissed

Criminal practice and procedure-appeal-appeal against conviction and sentence-the appellants were convicted of robbery with violence and sentenced to death-whether the evidence adduced was sufficient to secure a conviction-whether the prosecution had proved its case beyond any reasonable doubt-Penal Code section 296 (2); Evidence Act sections 25, 26, 28, 29, 31

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Criminal Law-Murder

Criminal Practice and Procedure- murder -appeal- appeal against conviction and sentence- appellant convicted and sentenced to death-duty of the first appellate court to review all the evidence emanating from the trial court and to arrive at its own decision on guilt or not guilt independently- circumstantial evidence-no direct evidence to prove that the appellant was responsible for the murder -whether the appeal could be allowed- Sections 203 and 204 of the Penal code