Farah v Republic (Criminal Appeal E039 of 2023) [2025] KECA 255 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 15-year drug trafficking sentence, confirming that second appeals only address legal errors, not facts or sentence severity.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the elements of possession/trafficking of the narcotic drugs were proved exclusively against the appellant to the exclusion of other persons in the house
- 2.Whether the discrepancies in the inventories, search certificate and recovery process undermined the legality of the search and the prosecution case
- 3.Whether this Court on second appeal can interfere with the sentence imposed, given the appellant's mitigation as a first-time offender of advanced age and ill health
Key legal issues
#Whether possession of the narcotics was exclusively proved against the appellant
Yes - the drugs were recovered from the appellant's bedroom, in her presence, in a house belonging to her, and she was the only adult present
Two facts were undisputed: the house belonged to the appellant and three other persons (a 17-year-old daughter, a 2-year-old child and a house help) were present. The drugs were recovered from her bedroom under the bed and in handbags. Multiple officers gave consistent accounts of where the drugs were found, and the search and recoveries were done in her presence. She never claimed the drugs belonged to her husband. The High Court drew the reasonable presumption of custody in her favour. No forensic evidence was necessary given the direct evidence of recovery.
Whether the two separate inventories and the timing of the search certificate compromised the recovery
No - the separate inventories reflected the respective recoveries of different officers and showed good faith; the discrepancies did not affect the overwhelming evidence
'P. Exhibit 5' listed 24 items including the narcotics; 'P. Exhibit 14' listed 13 items excluding the drugs, prepared by a different officer. The Court read no mischief in this, reasoning that each officer simply reported what each recovered. The presence of the two lists did not oust the fact that narcotics were recovered from the appellant's house. The minor discrepancies did not discredit the search or the recovery process.
Whether the sentence could be interfered with on appeal
No - severity of sentence is a matter of fact under section 361(1)(a) of the Criminal Procedure Code, and the sentence was lawful under section 4(a)(i) of the Act
On second appeal the Court's mandate on sentence is confined to matters of law and it can only interfere if the sentence is unlawful. Section 4(a)(i) provides for a fine of not less than fifty million shillings or three times the market value, or imprisonment up to fifty years, or both, where the quantity exceeds 100 grams. The trial court's 25-year terms, reduced by the High Court to 15 years each concurrent with fines sustained, were lawful.
Legal principles established
#- On a second appeal, the Court of Appeal concerns itself only with matters of law and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, a misapprehension of evidence, or wrong principles
- Severity of sentence is a matter of fact and not a legal issue open for consideration by the Court of Appeal on second appeal
- The provisions permitting police entry and search without warrant under the National Police Service Act and the Narcotic Drugs Act are not couched in mandatory terms such that failure to obtain a warrant indicates sinister motive or renders the search unlawful
- Where different police officers recover different items in a search, the preparation of separate inventories by each officer evidences good faith and does not cast doubt on the recovery
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and the sentence as substituted by the High Court (15 years' imprisonment on each count concurrent, with fines sustained) remain in force
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Second appeal under sections 361(1)(a) and 362(1)(a) of the Criminal Procedure Code, confined to matters of law
Relief refused
#Quashing of the conviction for trafficking in narcotic drugs
Concurrent findings of fact by the two courts below were based on ample and credible evidence and the Court on second appeal confines itself to matters of law
Interference with the sentence on grounds of first-offender status, advanced age and ill health
Severity of sentence is a matter of fact not open on second appeal; the sentence imposed was lawful under section 4(a)(i) of the Narcotic Drugs Act
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, we find that this appeal has no merit and is hereby dismissed in its entirety.
We find no reason to interfere with the findings of the two courts below on this score. To our mind, the conviction was sound and well rooted in the law.
As regards the sentence, under section 361(1) of the Criminal Procedure Code severity of sentence is a matter of fact and therefore not a legal issue open for consideration by this Court on second appeal.
The presence of the two lists of inventories did not oust the fact that narcotic drugs were recovered from the appellant's house.
Issues in the judgment
#Internal contradiction on the date of the search: paragraph 6 states the raid occurred on 22nd March 2019 while all other passages (including the inventories and search certificate) date it 22nd August 2019
Conflicting valuation of the cocaine in the judgment: PW4's evidence records Kshs. 1,215,200 while the charge particulars record Kshs. 1,213,200
No case number appears in the judgment for this appeal, and no costs order was made, which is unusual for a full appellate disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farah v Republic (Criminal Appeal E039 of 2023) [2025] KECA 255 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/255/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.