Republic v Issa (Criminal Case E012 of 2026) [2026] KEMC 273 (KLR)
The bottom line
#A Lamu court convicted a man of drug trafficking simply for storing bhang and diazepam, confirming you don't need to be caught selling to be guilty in Kenya.
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 accused person trafficked substances suspected to be bhang and cozepam (diazepam)
- 2.Whether the accused person was in possession of the substances suspected to be bhang and cozepam
- 3.That the substance found in possession of the accused is a narcotic drug
Key legal issues
#Whether possession and storage of suspected narcotics amounts to trafficking under section 2 of the Act
The court held that keeping the narcotics in an orange bag constituted storage, which is a form of trafficking under section 2 of the Act; the absence of evidence that the substances were for personal consumption reinforced the trafficking inference, and items such as a razor blade, side plate and spoon suggested repackaging for sale.
Section 2 of the Act defines trafficking to include storing. The prosecution's evidence, corroborated by all three witnesses, established that the accused carried the bag containing cannabis and diazepam. The accused's failure to call Fawaz and Yusuf, who he said were with him, weighed against his denial. The quantities and packing items indicated intent to distribute rather than personal consumption.
Whether the substances were proved to be narcotic drugs
The government analyst's report dated 23rd March 2026 confirmed the substances were cannabis and diazepam, narcotic drugs under the Act, and the accused did not challenge the report.
The samples (Pexh 2 and 3) were submitted to the government analyst, whose report found them to be cannabis and diazepam respectively, both narcotic drugs under the Act. The accused offered no challenge to the report, so the third issue was resolved in the affirmative.
Whether the accused's failure to call witnesses (Fawaz and Yusuf) affected the weight of his defence
The court drew an adverse inference from the accused's deliberate failure to call the two persons he said were with him, finding he feared they would confirm possession.
The accused admitted being with Fawaz and Yusuf but claimed nothing was recovered from him. The court reasoned that nothing would have been easier than calling them to confirm his assertion if he were not in possession. His deliberate failure to do so inferred possession and fear of confirmation. The prosecution's corroborated evidence therefore outweighed the defence's mere denials.
Legal principles established
#- Trafficking under section 2 of the NDPS Act includes storing a narcotic drug, and possession coupled with storing suffices to establish trafficking even without proof of sale.
Court orders
#- 1.The accused person is convicted on the sole count of trafficking in narcotic drugs under section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act, conviction entered under Section 215 of the CPC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction under the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994, section 4(a)(ii), and the Criminal Procedure Code (Section 215)
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.
The upshot of the foregoing is that the charge against the accused person has been substantiated and/ or proved to the required standards and the accused person is thus guilty in that sole account and he is accordingly convicted in the said count under Section 215 of the CPC.
the accused was indeed in possession of the substances suspected to be narcotics drugs and that he had stored them in the orange bag (Pexh 1) and to this end the ofience of traficking narcotics by storing has been established and/ or proved
the addition things found together with the narcotics suggest to me that they are for packing and/or repackaging them into smaller portions for ease of sale
The fact that he deliberately failed to call them infers that he was in possession of the items and he is afraid that the 2 will confirm as much.
Issues in the judgment
#The offence date (12/3/2026) and delivery date (8th July 2026) are dated in the future relative to a first-instance judgment timeline; the year '2026' appears throughout and may be a typographical error for an earlier year.
The judgment refers to 'cozepam' in the issues framed, apparently an error for 'diazepam' as charged and found by the government analyst.
Recurring typographical errors ('traficking', 'ofience', 'afirmative', 'corss') appear in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Issa (Criminal Case E012 of 2026) [2026] KEMC 273 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/273/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.