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Kenya: Two Convicted For A Crime They Were Not Accused Of

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
The Senior Resident Magistrate in Busia, convicted Madline Akoth Barasa and Gabriel Ojiambo Nambesi for trafficking in narcotic drugs, contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No4 of 1994.

Each was sentenced to a 10-year imprisonment and their respective appeals against conviction and sentence to the High Court, which were consolidated, dismissed.

The particulars of the charge were that on May 2, 2003, at Sidindi market along Busia-Kisumu road, the two were found jointly trafficking in a narcotic drug - cannabis sativa - 290 stones weighing 45kg while using a KBS bus, KAN 846H, in contravention of the Act.

Three witnesses; the bus driver, conductor and the arresting officer, gave evidence at the trial in support of the charge. The arresting officer, Mr Benson Sindani, told the court he and two other policemen followed the bus in a patrol vehicle after a tip off that a man and a woman had loaded bhang on the bus between Matayos and Bumala.

They caught up with the bus at Sidindi, stopped it then ordered the bus conductor, Mr Eliakim Jomo Gangani, to open the boots.

After a search, they found two nylon bags containing dry plant wrapped in khaki paper.

When later examined by the Government Chemist, the substance was identified as cannabis sativa (bhang). The officers asked Jomo to identify the owners of the luggage. He picked the two.

Police arrested the appellants. The driver of the bus, Mr Geoffrey Gathango Ngugi, told the court the two appellants stopped the bus near Bumala and each had a huge nylon bag.

Barasa, who was the second accused, stated at the trial that on the material day, she boarded the bus at Busia and when it was intercepted at Sidindi, officers called the conductor out and she was later removed from the bus. The bus conductor had alleged she was in the company of the second appellant who she claimed she did not know.

Guilty as charged

Nambesi, the first accused, stated at the trial that on the material day, he was in the company of two men and a woman when he boarded the bus at Matayos; that police officers stopped the bus at Sidindi; that the conductor went out and talked with police for about 30 minutes; that he came out of the bus and demanded that the bus leaves; that thereupon the police claimed he was the owner of the bag and arrested him.

The main ground of appeal raised by the two was that the High Court erred in finding that they were jointly in possession of the 45kg of bhang.

On the question of possession, the trial magistrate had analysed the evidence and concluded that the luggage belonged to both the accused and that both were in the company of each other though they did not sit together.

She had said in part: "The nylon bags were similar in colour and carried similarly wrapped bhang... Both accused paid fare to Nairobi."

The High Court re-evaluated the evidence as the first appellant court and said, "I have come to the same conclusion that the two appellants were in possession of the plant material with their full knowledge in view of the glaring and unchallenged evidence of the prosecution witnesses. The circumstances surrounding the case points to the guilt of the appellants."

And the Court of Appeal concluded: "On our own analysis, we are satisfied that the concurrent findings of fact were based on ample and credible evidence. There are no grounds upon which we can interfere with the findings of the two courts below." That notwithstanding, the Court of Appeal was uncomfortable, rightly so, with the sentences meted to the appellants.

From the sentences meted out, it is unclear whether the appellants were being punished for trafficking narcotic drugs, being in possession of narcotic drugs or any other offence. Section 4(a) of the Act under which the appellants were charged and convicted provides that a person who traffics in any narcotic drug or psychotropic substance shall be guilty of an offence and liable to "a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater in addition to imprisonment for life "

Section 86 of the Act provides for the valuation of the goods for penalty.

The Act creates a separate offence of possession of narcotic drugs or psychotropic substances in section 3(1) and by section 3(2)(a) prescribes a penalty of 10 years imprisonment in respect of cannabis sativa, where the person satisfies the court that the cannabis was solely intended for his own consumption and in every other case to imprisonment of 20 years.

Section 3(2)(b) provides relatively more severe penalty for possession of narcotic drugs or psychotropic substances (other than cannabis sativa).

It is clear from the foregoing that if the offence of trafficking is proved and the trial magistrate convicts the accused, the trial magistrate has to impose the composite sentences of fine and imprisonment. In this case, the trial magistrate imposed only a sentence of 10 years and did not give reasons for non-compliance with the law.

The High Court judge considered the charge defective for failure to state the value of the bhang but held that the defect was not fatal because no fine had been imposed as required by law.

However, he did not impose any sentence of fine to comply with the law and did not even consider whether, in the absence of any valuation, it was lawful to impose the prescribed threshold sentence of a fine of one million shillings.

While considering the ingredients of the offence of "trafficking", the judge stated that the evidence showed the appellants were in "possession" of the plant substances and that they had "transported" them using the KBS bus.

Section 2 of the Act defines Trafficking as "the importation, exportation, manufacture, buying, sale, supply, storing, administering, conveyance, delivery or distribution by any person of a narcotic drug or psychotropic substance or any substance represented or held out by such person to be a narcotic drug or psychotropic substance".

Said the appellate Judges: "In our view, the sentence imposed was more appropriate to the offence of possession of cannabis sativa contrary to section 3(1) as read with section 3(2)(b) of the Act and the High Court Judge should have considered whether he could have convicted the appellants for the offence of possession instead of confirming the conviction for the offence of trafficking in narcotic drugs".

The trial magistrate too, though having considered the definition of trafficking in the Act, did not say which act of the appellants amounted to trafficking. The judges added: "In our view, for the charge sheet to disclose the offence of trafficking, the particulars of the charge must specify clearly the conduct of an accused person which constitutes trafficking. The prosecution too should, at trial, prove by evidence the conduct of the accused person which constitutes trafficking".

The judges said in this case, neither the charge sheet nor the evidence disclosed the dealing with bhang, which constituted trafficking. The trial magistrate did not even deal with that aspect of the case.

"In the circumstances, we are not satisfied that the offence of trafficking was proved," the judges said. However, the judges held that the prosecution proved the offence of possession of cannabis sativa, proceeded to substitute the conviction for trafficking with that of possession, set aside the sentence of 10 years imprisonment and sentenced each appellant to five years imprisonment effective July 28, 2003, the date the appellants were convicted by the trial court.

News Hawk- User http://www.420Magazine.com
Source: allAfrica.com
Author: Nyakundi Nyamboga
Contact: allAfrica.com: Home
Copyright: 2007 East African Standard
Website: Two Convicted for a Crime They Were Not Accused of
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