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Onyango v Republic (Criminal Appeal E035 of 2021) [2022] KEHC 13582 (KLR) (3 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 13582 (KLR)
Republic of Kenya
Criminal Appeal E035 of 2021
OA Sewe, J
October 3, 2022
Between
Augustine Otieno Onyango
Appellant
and
Republic
Respondent
((Appeal against conviction and sentence in Criminal Case Number 219 of 2019, Republic v Augustine Otieno Onyango & 2 others at Voi, delivered by F. Nyakundi. SRM on 31.8.2021))
Judgment
1.The appellant was charged jointly with two others with the offence of Trafficking Narcotic Drugs contrary to Section 4 (a) of the Narcotic Drugs and Psychotropic Substance (Control) Act.1 The particulars were that on the 26th day of February 2019 at around 2030 hrs at Maungu Trading Centre within Voi Sub- County, Taita Taveta County, they were found trafficking in narcotic drugs by transporting 2580 long rolls of cannabis to wit 113 Kilograms with a street value of Kshs. 375,000/= using a Toyota Premio Registration number KBB 231 H in contravention of the said Act.
2.This being a first appeal, it is incumbent upon this court to re-analyse and re-evaluate the evidence adduced before the trial court and come up its own conclusions. (See Kiilu & another v Republic2 & Okeno v R3). In summation, the principles to be kept in mind by a first appellate court while dealing with appeals are: -4a.There is no limitation on the part of the appellate Court to review the evidence upon which the order appealed against is founded and to come to its own conclusion.b.The first appellate Court can also review the trial court’s conclusion with respect to both facts and law.c.It is the duty of a first appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed.d.When the trial Court has breached provisions of the constitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question.
3.The first appellate court must itself weigh conflicting evidence and draw its own conclusions.5 It is must scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. Only then can it decide whether the trial court’s findings should be supported. In doing so, if should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses first hand.6
4.PW1, Sgt George Otuoma attached at the CID Voi anti-narcotics unit was the investigating officer. Accompanied by PC Charo, he went to Mangu and at the police station he found PC (Driver) Faisal, Cpl Gateru and PC (Driver) Ratemu and Motor vehicle KBD 231 H, Toyota Premio with 3 persons who had been arrested. He said suspects admitted the vehicle was theirs and upon searching them, they found the vehicles keys in the appellant’s pocket. In the vehicle was a consignment which was suspected to be bhang. He prepared an inventory which was signed by the 3 accused persons and they took the vehicle to Voi Police Station where it was photographed by a scene of crime officer. He prepared an exhibit memo and escorted the consignment to the government chemist. Later, he obtained a report confirming the consignment was bhang. He charged the accused persons in court. He identified the exhibits in court and produced the 2560 rolls weighing at 113 kgs valued at Kshs. 374,000/=. He said the appellant said the vehicle was his.
5.PW2, Insp Peter Kyalo photographed the vehicle and the consignment. He produced the photographs in court. PW3, PC (Driver) Feisa Fahid testified how acting on information they blocked the vehicle where it was parked and with the help of a watchman, they traced the occupants at a hotel. PW4, David Wabao, a government analyst produced the Report of Government Analyst prepared by his colleague whom he had worked with for 8 years. The report concluded that the consignment was bhang.
6.In his unsworn defence, the appellant denied the offence. He stated that he sells omena and on the material day he went to Maungu at 10am to sell Omena. At 6.30pm he went to a hotel but a few minutes later the police arrested him, searched him and took his Kshs, 700/=. He said he was told he had a vehicle and later he was taken to Maungu Police Station and he was put together with other people. He said the person who arrested him never testified in court.
7.In his judgment, the learned Magistrate noted that the keys for the vehicle were recovered from the appellant’s pocket together with his driving licence. He was persuaded that the bhang was recovered from the said vehicle so, the offence of trafficking had been proved. He gave the 2nd and 3rd accused persons the benefit of doubt and acquitted them. However, he sentenced the appellant to serve 10 years imprisonment.
8.In summary, the appellant’s grounds of appeal can be reduced to: - (a) the charge sheet was defective; (b) that possession was not proved; (c) that the person connecting the appellant and the charges was not called; (d) ownership of the vehicle was not established; (e) his mitigation was not considered.
9.The appellant’s counsel argued that the appellant was convicted because the car keys were found on him. He submitted that no evidence of the value of the drugs was adduced. He relied on Thomas Onyano Opondo & another v Republic7 which underscored the need to demonstrate how the value of the drugs is arrived at. He also cited Emmanuel Kwako Ababio v Republic8which held that the penal scheme prescribed under section 4(a) of the act is predicated on the value of the Narcotics Drugs recovered, hence the need for reliable evidence on the value, the burden of which lies on the prosecution. He also cited Caroline Wakesho Machila v Republic9 which held that the omission to tender evidence on the value of the drugs is fatal.
10.The Respondent’s counsel argued that the appellant was found with the car keys, driving licence and the cannabis sativa was also found in the vehicle, so, there was a direct connection between the appellant and the cannabis sativa. He relied on Nichanor Agondo Radolo v R10 in which the appellant’s association with the car ferrying bhang, just like in this case, was possession of the car keys and the court held that connection with the vehicle was sufficient to establish culpability.
11.As for the argument that valuation was not done, he cited Farid Jamal Shebwana v Republic11which cited Moses Banda Daniel v Republic,12 Joshua Atula & another v Republic13and Antony Mbithi Kasyula v Republic14 all of which held that the proviso to section 74A of the Act is not mandatory, and non-compliance of the said section is not fatal.
12.Undeniably, the presumption of innocence lies at the very heart of the criminal law. It is protected explicitly by Article 50 (2) (a) of the Constitution. This presumption has enjoyed longstanding recognition at common law and has gained widespread acceptance as evidenced from its inclusion in major international human rights documents. In light of these sources, the right to be presumed innocent until proven guilty requires, at a minimum, that: (1) an individual be proven guilty beyond a reasonable doubt; (2) the State must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with lawful procedures and fairness. The presumption of innocence is hallowed principle lying at the very heart of criminal law which protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. This is essential in a society committed to fairness and social justice.
13.Section 4 (a) of the Narcotics Drugs and Psychotropic Substances (Control) Act15provides:
14.The act defines trafficking as follows: -
15.The above definition is only subject to the exceptions provided under paragraphs (a)-(d) under the said definition. Plainly, the definition contains the main elements of the offence. Moreover, the drug trafficking elements include activities such as preparing drugs for shipment and delivering drugs when the person either knows that the drugs are meant to be sold or it is reasonable to believe that the drugs will ultimately be sold. Thus, the crime of drug trafficking does not merely cover the person who is actually doing the selling, or who is making offers to customers. Rather, drug trafficking covers all those individuals who are involved in the activities associated with trafficking in drugs. The Court of Appeal in Gabriel Ojiambo Nambesi v Republic16addressing what constitutes the offence of trafficking in narcotic drugs observed: -
16.The actus reus of the offence of trafficking in narcotic drugs is established by the prosecution proving that a person has done one of the acts listed in the above definition, namely, importation, exportation, manufacture, buying, sale, giving, supplying, storing, administering, conveyance, delivery or distribution by any person of a narcotic dug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance or making of any offer in respect thereof.
17.As a matter of statutory language, the offence in section 4 (a) is expressed to be “traffics in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance…”- At common law, the term "trafficking" has been held to at least connote: - (a) An activity performed in a commercial setting (i.e., a setting in which it can fairly be inferred that someone involved is making a profit); (b) Participation by the alleged trafficker in the progress of goods from source to consumer; and (c) Contact between the alleged trafficker and at least one other person. (See Giretti v R17). Mere possession of drugs will not be sufficient to constitute trafficking at common law. A person will not have been involved in common law trafficking if they were not involved in the onward movement of the drugs to the ultimate consumer (R v Holman;18 R v Kloufetos19).
18.So, a person who possessed drugs will not have trafficked at common law even if it can be inferred that he possessed the drugs for a commercial purpose and intended to traffick in the future. He must have at least committed an overt act directed towards transferring ownership or possession of the drugs.20 While it is necessary for there to be contact between the alleged trafficker and at least one other person, it may be sufficient if it can be inferred that a person exists who plays the role of the other person in the movement of the drugs, even if the identity of that person is unknown.21Trafficking at common law may involve delivering or selling drugs to another person, or possibly purchasing or receiving drugs from another person.22 Bartering, sending or forwarding drugs may also be trafficking at common law.23
19."Trafficking" can be established by proving that the accused committed an identifiable single act or transaction, such as selling drugs on a specific occasion or being in possession or transporting. It can also be established by proving that the accused carried on a drug dealing business over a specified period of time.24The offence of the trafficking requires the accused to have trafficked in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance. The mens rea of the offence in section 4(a) is established by proof that the defendant knew that he was trafficking in a dangerous drug and it is not necessary to prove that he knew or believed which particular type of dangerous drug he was trafficking in. (See Macdougall VP held, in R v Tam Chun Fai.25
20.Turning to the facts of this case, the police explained how acting on information traced the car parked outside a hotel at Maungu. A watchman told them that the occupants were having a meal at the hotel. The police confronted them and they admitted the car as theirs. Upon conducting a search, the car keys were found with the appellant. The discovery of the key became the crucial link between the appellant and the car.
21.The import of the recovery of the car key from the appellant informed the learned Magistrate’s findings on the appellant’s culpability. The appellant thinks otherwise and invites this court to find otherwise. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
22.It has been propounded that while scrutinizing the circumstantial evidence, a court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight-jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.
23.Section 8 of the Evidence Act26 deals with relevance of motive in criminal trial. It reads as under: -
24.In State of U.P. v Babu Ram27 the Supreme Court of India has stated that motive is a relevant factor in criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. In State of Uttar Pradesh v Kishan Pal & others28 the Supreme Court of India examined the importance of motive in cases of circumstantial evidence and observed: -
25.The Supreme Court of India in Khurshid Ahmed v State of Jammu & Kashmir29 observed that the prosecution may prove but the prosecution is not bound to prove the motive for a crime. Motive is an emotion which compels the person to do a particular act. It will be very difficult for the prosecution to prove the real motive in all cases. Motive is a double-edged weapon when there is direct and reliable evidence available motive loses its importance. In a case of circumstantial evidence motive assumes greater importance than in the case of direct evidence. In a case of direct and compelling evidence even assuming that no motive is attributed, still the prosecution version has to be examined. In my view, the recovery of the keys from the appellant places him at the centre of the alleged trafficking. I find no basis to fault the learned Magistrate’s finding on the appellant’s culpability,
26.The other essential element is possession. Just like my findings above, the evidence linking the appellant with the car again places him at the centre of the ingredient of possession. Possession is defined as having control over the disposition of a substance or thing, and includes having joint possession of a substance or thing. A defendant must know that the drug is in his/her custody and control, and that it is a drug to which the Act applies, although he/she need not know precisely what the drug is. As discussed above, the cannabis sativa was found in the car. The appellant never suggested that he was not aware of the consignment nor did he dissociate himself with the consignment. I find and hold that the ingredient of possession was proved to the required standard.
27.The other ground of assault mounted by the appellant is that the charge sheet was defective. Very little was said about the alleged defect. However, I will address the law on the subject. True, the law contemplates that there may be occasions when there will be an error, omission or irregularity in a charge. Moreover, there will be errors, omissions or irregularities that will defeat a charge. However, whether such an error, omission or irregularity is incurable will depend on whether it occasions a failure of justice. This is the foundation of Section 382 of the Criminal Procedure Code30 which provides: -
28.As Rudd J31stated: - “as regards the proviso to this section, no objection to the charge has been raised at all to this very moment by the appellant. On the other hand, if the appellant in the said case had objected to the charge at any proper time in the lower court the charge could have been amended to fall within the proper provisions.” I have searched the entire record and I find that no objection to the charge sheet was raised at all through-out the proceedings. Even if an objection had been raised, the error (if at all there was any) has not been shown to have been of such a nature that it could have been cured by an amendment. Additionally, section 134 of the Criminal Procedure Code32 provides: -
29.A reading of the above provision leaves no doubt that the charge sheet as drawn was not incurably defective or prejudicial to the appellant. In fact, from the particulars, it discloses the offence of trafficking. I find support in Seidi v Republic33 where the state counsel conceded in court that the charge sheet as framed was defective. The court held that the defects in the charge sheet had occasioned no failure of justice and were curable. A similar position was held in Mwasya v Republic34 where the court held that the charge was defective, but not of such an irregularity or error as had occasioned a failure of justice under Section 382 Criminal Procedure Code.35 In Avone v Uganda, the court held that where the mis-descriptions in the charge sheet had not prejudiced the appellant, the convictions ought to be allowed to stand.
30.As was held in Sigilani v Republic36 the principle of the law governing charge sheets is that an accused person should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence. My reading of the particulars in the charge sheet and the evidence tendered leaves me with no doubt that from the onset; the appellant knew the charge facing him.37 The particulars were carefully spelt out. The charge was not defective.
31.I should underscore that the charge sheet outlines the essential ingredients and particulars of the offence. The evidence adduced was geared to establishing the said offence and the defence offered was clearly a direct response of the allegations made against the appellant. Where no prejudice is alleged to have been suffered or demonstrated, or unless the charge sheet is out rightly defective or ambiguous the court will be reluctant to pronounce the same as defective. (See Republic v Mohamed Abdi Bille,38 and Vincent Shatuma Naste v Republic39).
32.Section 134 of the Criminal Procedure Code40 requires that every charge or information shall contain, and shall be sufficient, if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence. In my view, the charge sheet complies with this section. Section 137(a) of the Criminal Procedure Code41 requires that the Statement of an offence should offer a brief description in ordinary language, avoiding as far as possible the use of technical terms and that it is not necessary to put all the elements of the offence within the Statement. I find that the charge sheet conforms to this section. Section 137(a)(i) and (ii) of the Criminal Procedure Code42provides that if the offence charged is one created by a statutory enactment, it must contain a reference to the Section of the enactment creating the offence.
33.The other ground of assault mounted by appellant was that the ownership of the vehicle was not proved. To my mind ownership of the vehicle was not in issue. The question was whether the appellant was trafficking the drugs using the vehicle. The involvement of the vehicle is not in dispute. As stated above, the car keys were recovered from the appellant’s pocket. He said nothing to delink himself from the said car.
34.The appellant invited this court to fault the judgment on grounds that the prosecution failed call the witness who linked the appellant with the offence. The starting point is that section 143 of the Evidence Act43 provides that “No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.” The Court of Appeal in Julius Kalewa Mutunga v Republic44 stated: -
35.In Bukenya & Others v Uganda45 the former East African Court of Appeal laid down the following principles: -i.the prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.ii.The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case.iii.Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.
36.The court in the above case was categorical that the prosecution is not expected to call a superfluity of witnesses. The adverse inference will only be made by the court if the evidence by the prosecution is not or is barely adequate. Accordingly, it will not be inferred where evidence tendered is sufficient to prove the particular matter in issue or the entire case. As Mahoney J. said, the significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. There are circumstances in which it has been recognized that such an inference is not available or, if available, is of little significance.46 This position was cited with approval by Miler JA in Hewett v Medical Board of Western Australia.47 (Also see Cross on Evidence48).
37.The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown in the pleadings or by the course of the evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. This position was upheld in the following cases, namely; Schellenberg vs Tunnel Holdings,49 Ronchi vs Portland Smelter Services Ltd50 and Hesse Blind Roller Company Pty Ltd vs Hamitovski51 and its also reiterated in Cross on Evidence.52 When no challenge is made to the evidence of witnesses who are called, the principle in Jones v Dunkel cannot be applied to make an inference in respect of other witnesses who could have been called to give the same evidence.53
38.A look at the record shows that the prosecution led evidence which led to the arrest, the search, transfer of the accused persons and the vehicle to Voi police station, the preparation of the inventory which was signed by the accused persons and photographing the exhibits. As explained in Cross on Evidence54 and the authorities cited above, the rule does not require a party to give merely cumulative evidence. In order for the principle to apply, the evidence of the missing witness must be such as would have elucidated a matter.55The appropriate inference to draw is a question of fact to be answered by reference to all the circumstances of the case. The law is also clear that there is no particular number of witnesses required for proof of any fact.56 It has not been shown that the evidence tendered had gaps which required to be filled by the alleged missing witness.
39.The other ground urged by the appellant is that his mitigation was not considered. I find no merit in this ground. In any event, sentencing is essentially a matter of the courts discretion and an appellate court will only interfere if the lower court grossly misdirected.
40.It has been argued that the drug was not valued. Several decisions were cited by both parties some faulting the omission and others holding that section 74A is not mandatory. The Court of Appeal in Moses Banda Daniel v Republic57 pronounced itself on the meaning of the above section. It stated: -
41.Also, the Court of Appeal further looked at the purpose of section 74A as intended by the legislators and made a reference to the Hansard record of Parliament of 6th December 2000 where The then Attorney-General, Amos Wako moved a motion for the amendment of the Act. The Court of Appeal went on to hold that: -
42.If there was any doubt on the proper construction of the above provision, then one can say with certainty that the Court of Appeal settled the matter.
43.In conclusion, I find and hold that this appeal fails in its entirety. I uphold the lower courts finding and hereby dismiss the appellant’s appeal.Right of appeal 14 days
DATED AND SIGNED AT VOI THIS 3RD DAY OF OCTOBER 2022John M. MativoJudgeDated, signed and delivered virtually at this 6th day of October 2022OLGA SEWEJUDGE**
