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MagistrateDismissedNot stated in the judgment· [2026] KEMC 271 (KLR)

Republic v Swaleh (Criminal Case E005 of 2026) [2026] KEMC 271 (KLR)

Magistrates' Court (Lamu Law Courts, Faza Mobile Court)
8 July 2026
FMF.M. Mulama
1,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court acquitted a man of drug trafficking because police could not prove the raided house belonged to him or properly document the seized evidence.

What this practically means

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Executive summary

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The accused, Swaleh Ahmed Swaleh, was charged with trafficking in narcotic drugs contrary to section 4(a)(i) of the Narcotic Drugs and Psychotropic Substances (Control) Act, on allegations that on 4/2/2026 at Kizingitini he trafficked 250 grams of cannabis with a street value of Kshs.12,000 by storing. Two police witnesses testified for the prosecution that, acting on a tip-off, they raided a house from which the accused allegedly escaped; inside they found transparent papers and sachets containing dry plant substances suspected to be bhang, together with candles and razor blades. The accused, found with a case to answer, gave a sworn denial, stating he had been fishing and that police forced entry into his sister's presence; he questioned the plausibility of the escape account. The court framed two issues: whether the accused trafficked the substance by storing, and whether the substance was cannabis. The substance was confirmed to be cannabis by an analyst's report (Pexh 4), which was not disputed. On trafficking by storing, however, the court found serious doubts: the two officers gave differing accounts of the escape and of the items recovered, no inventory of seized items was prepared or produced, some exhibits were left at the station, the scene was not photographed, and no evidence established that the raided house belonged to the accused. Without proof of ownership, storing could not attach, and possession - the proper alternative charge - was not preferred. Holding the case poorly investigated and the charge not proved beyond reasonable doubt, the court dismissed the prosecution's case, acquitted the accused under Section 215 of the CPC, and ordered his release unless otherwise lawfully held.

Key legal issues

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01

Whether the accused trafficked cannabis by storing

Holding

Not proved; the prosecution failed to establish that the raided house belonged to the accused, so storing could not attach, and doubts in the evidence meant the charge failed.

Reasoning

The two arresting officers gave materially different accounts of what was recovered and how the accused escaped. No inventory of seized items was prepared or produced, and not all seized items were availed in court, which the court viewed as a deliberate attempt to scuttle justice. No evidence linked the accused to the house, and without proof of ownership the element of storing could not stand; possession would have been the proper alternative charge but was never preferred.

p. 3
02

Whether the substance seized was cannabis/bhang

Holding

Yes; the government analyst's report confirmed the substance was cannabis, and the accused did not dispute it.

Reasoning

The accused did not dispute that the dry plant substance was bhang, and the report dated 19th March 2026 produced as Pexh 4 confirmed it. This issue was therefore answered in the affirmative, leaving only the question whether trafficking by storing was proved.

p. 3

Legal principles established

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  • Doubts in the prosecution's case are resolved in favour of the accused person.
  • For a charge of trafficking by storing, ownership or occupancy of the premises where the drugs are found must be established.

Court orders

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  1. 1.The case by the prosecution is dismissed.
  2. 2.The accused person is acquitted under Section 215 of the CPC.
  3. 3.The accused is at liberty unless otherwise lawfully held.

Authorities

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Legislation

  • Narcotic Drugs and Psychotropic Substances (Control) Actsection 4(a)(i); section 2
  • Criminal Procedure Codesection 215
Jurisdiction invoked
Criminal trial for trafficking in narcotic drugs contrary to section 4(a)(i) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994; acquittal under Section 215 of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Swaleh (Criminal Case E005 of 2026) [2026] KEMC 271 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/271/eng@2026-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.