Republic v Itulya & another (Criminal Case E491 of 2022) [2025] KEMC 125 (KLR)
The bottom line
#A Makindu court acquitted a man of drug possession because police never produced the alleged cannabis in evidence against him.
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 2nd accused person was found in possession of cannabis
- 2.If so, whether such possession was unlawful
- 3.Whether the prosecution has proven its case against the 2nd accused person beyond reasonable doubt
Key legal issues
#Whether the alleged cannabis was proved to be in the 2nd accused's possession
The alleged cannabis was never produced in evidence at the 2nd accused's trial; exhibits produced when the 1st accused pleaded guilty could not be relied upon against the 2nd accused, and without the exhibit neither possession nor the offence was proved
The court noted that the alleged cannabis was not produced in evidence at the 2nd accused's trial. The prosecution purported to rely on exhibits produced when the 1st accused pleaded guilty, but only the cannabis relating to the 1st accused was produced then, and those proceedings did not involve the 2nd accused. Reliance on them would have denied the 2nd accused the chance to challenge the evidence. Material evidence cannot precede witness testimony and there are no shortcuts to the procedure for production of exhibits.
Burden and standard of proof
The burden lies on the prosecution to prove the accused's guilt beyond reasonable doubt, a high degree of probability short of certainty; the accused is under no duty to prove innocence
Relying on Woolmington's 'golden thread' as cited in Stephen Nguli Mulili v Republic, the court reaffirmed that the burden of proof lies with the prosecution. Lord Denning's formulation in Miller v Ministry of Pensions was adopted: proof beyond reasonable doubt need not reach certainty but must carry a high degree of probability, excluding fanciful possibilities. The accused need not prove his innocence. Since reasonable doubt was cast on possession and the identity of the drugs, the doubt had to be resolved in the accused's favour.
Legal principles established
#- The prosecution must prove both that the offence was committed and that the evidence links the accused to the offence, beyond reasonable doubt
- Narcotic exhibits must be produced in evidence at the trial of the accused; without production of the alleged drug, the offence cannot be said to have been committed
- There are no shortcuts to the procedure for production of exhibits during trial; material evidence cannot precede witness testimony
Court orders
#- 1.The 2nd accused person is found not guilty of the offence of possession of narcotic drugs
- 2.The 2nd accused person is hereby acquitted of the charge pursuant to section 215 of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Criminal jurisdiction over a charge of possession of narcotics contrary to section 3(1) as read with section 3(2)(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act; acquittal under section 215 of the Criminal Procedure Code
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.
Without production of the alleged cannabis in evidence, it cannot be said that the offence was committed. Besides, there would be nothing to link the 2nd accused person to the offence complained of.
Material evidence cannot precede witness testimony. Furthermore, the 2nd accused person would have been denied a chance to challenge such evidence. The procedure for production of exhibits during trial is clear. There are no shortcuts.
I find that the prosecution has failed to prove its case against the 2nd accused person beyond reasonable doubt.
a. The 2nd accused person is found not guilty of the offence of possession of narcotic drugs; b. The 2nd accused person is hereby acquitted of the charge pursuant to section 215 of the Criminal Procedure Code.
Issues in the judgment
#The prosecution case was heard by a different magistrate who was subsequently transferred; the trial judge relied entirely on the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Itulya & another (Criminal Case E491 of 2022) [2025] KEMC 125 (KLR)", Case Analysis (2025). Not stated in the judgment (criminal charge re: possession of narcotics, Makindu). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/125/eng@2025-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.