Republic v Islam (Criminal Case E121 of 2026) [2026] KEMC 370 (KLR)

5. Both the defence and the state opted not to file any submissions. I have considered the testimonies and the 49 exhibits produced in this matter. 6. In brief it is the prosecution’s case that while acting on intelligence reports, they went to Mkunumbi area of Lamu West where the intelligence reports had informed them of a person dealing in narcotic drugs. The DCI oficers to wit Pw 1,3(CSI oficer) and 4 in the cover of darkness went to Mkunumbi area as directed by the intelligence reports and upon arrival at the homestead, the found a group of people and who upon seeing them took ofi to their heels to difierent directions. 7. This prompted the oficers to fire 2 shots in the air in a bid to intimidate them to surrender and lucky for them Awadh Salim Islam surrendered and they arrested him. Soon afterwards the accused came back and was also arrested amid struggles with Pw 4 and in the end, they only managed to handcufi his one hand. Awadh was not handcufied as he cooperated. 8. After that dust settled, the area chief (Pw 2) was called in and the house of interest was opened and Pw 2,3 and 4 and Awadh entered into the house and the exhibits produced were recovered. The said exhibits were loaded onto the police vehicle and while the loading was ongoing, the said Awadh who had cooperated all through decided to be stubborn and escaped into the dark and he has never been arrested to date. 9. According to the Pw4 the Investigating oficer, investigation and the seizure made that night proved that the accused was engaging in traficking in narcotics as packaging material, bhang, weighing scales and cash money was found in the house and the presence of the personal identification documents of the accused in the house proved to them that the accused was indeed the culprit. It was further the evidence of the IO that on the wall there was an Mpesa agent and store numbers to wit 2824153 and 2825158 respectively. Although nothing much in terms of evidence from Safaricom was produced to prove ownership of the said Mpesa agent number. 10. After all the items were loaded onto the police vehicle, they escorted the accused to the police station where inventories were prepared and other documents and days later the dry plant substances suspected to be bhang were taken to the government analyst and after analysis the report dated 11th May 2026 confirmed that all the dry plant material recovered was actually bhang. B. Issue for Determination. 11. The sole issue for determination at this juncture is whether the prosecution has established a prima facie to warrant the accused to be placed on his defence. C. Analysis. 12. In order to answer the issue for determination in the afirmative and thereby place the accused on his defence, the court at this moment has to look at the prosecution’s case in toto considering that the prosecution will not provide any other information, evidence and/or exhibits but merely poke holes in the defence the accused is to ofier should he be placed on his defence. 13. Since it’s a wholistic examination of the prosecution’s case, let us start with the charge sheet as amended. The ofience is that of conspiracy to trafick in Narcotic drugs contrary to section 4(B)(4) of the Narcotic drugs and psychotropic substances(control) Act No.4 of 1994 as amended by Narcotic drugs and psychotropic substances (Control)(amendment) Act, 2022. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/370/eng@2026-07-31 2

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14. A perusal of the Act as amended Section 4 thereof provides for ofiences relating to traficking but of importance for purposes of this case is Section 4B and the section provides for the various scenarios of conspiracy ofiences relating to traficking. 15. Black’s Law Dictionary, 10ᵗʰ Edition, at page 375 defines conspiracy as follows: “ An agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreement’s objective, and motive and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.” 16. Similarly, Archbold, Criminal Pleading, Evidence and Practice, states: “ The ofience of conspiracy cannot exist without the agreement, consent or combination of two or more persons so long as a design rests in intention only, it is not indictable. There must be an agreement; proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.” 17. The Court in Marete v Republic (Criminal Appeal E068 of 2024) [2025] KEHC 11385 (KLR), where it was held that: “ It follows from the foregoing that proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.” 18. Similarly, in the case of Christopher Wafula Makokha vs. Republic, Mabeya J. held that: “ ...it is clear that the prosecution must prove the existence of an agreement between the accused and some other person to do the act". 19. Lastly in the case of Nicholas Shivachi & Another vs. Republic, Justice L. Kimaru (as he then was) held that: “ On re-evaluation of the evidence adduced before the trial court, in light of the submission made on this appeal, it was clear to the court that the prosecution failed to establish the essential ingredients of the charge of conspiracy. In the present appeal, no evidence was adduced by the prosecution to establish the existence of an agreement between the Appellants, either by themselves, or with others, to put into efiect a course of conduct in furtherance of criminal purpose...” 20. From the foregoing authorities, it is clear that for a charge of conspiracy to be sustained, there can never be one accused person facing the charge of conspiracy of whatever nature. A clear definition of conspiracy is that there has to be a meeting of minds between 2 or more people who should agree and/ or consent towards the furtherance of a criminal enterprise. 21. The accused herein has been charged alone. Is it therefore possible that he conspired with himself to commit the ofience he is charged with? It cannot be. It would be an absurdity in law to find otherwise. 22. Section 4B (4) anticipates a situation where the accused is charged with his co accused and who should be within the boundaries of Kenya. The section states as follows; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/370/eng@2026-07-31 3

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(4) A person who being in Kenya, conspires with another person who is also in Kenya to commit an ofience under this Act in Kenya or outside Kenya commits an ofience. 23. This is the same section the accused is charged under. It is clear that for any charge to stand under this section 2 things must be present. 2 (accused) persons and they must be in Kenya. The charge in this case fails the test. There is only one accused person. The ofience of conspiracy therefore from the aforegoing cannot exist without the agreement, consent or combination of two or more persons. 24. In the absence of a co-accused person it is impossible to ascertain and/or establish a common unlawful purpose. From the evidence on record and from the oficers who were at the scene they may be tempted to say but Awadh was also arrested but he later escaped and since they were arrested together then they had a common intention. That is an easy excuse but which the law does not recognize in strict sense. it is further said that even the devil knows not the intent of man. In other words intention can only be inferred from evidence against an accused person or both accused persons in a case of conspiracy. 25. The state has to produce evidence that links both accused persons to the commission of the same ofience for which they are both charged for the inference to be properly established and consequently a conspiracy charge to be firmed up. 26. It matters not the weight of the evidence against the accused person and/or the number of exhibits produced thus far, it all starts with the foundation upon which such evidence and exhibits are premised upon. D. Determination. 27. The prosecution must therefore prove the existence of an agreement between the accused and some other person to do the act and any failure to do this on the part of the prosecution makes the charge fatally defective. I therefore find that the charge as framed is fatally defective for the reasons given. Further I do find that the evidence on record does not support the ofience of conspiracy for the same reasons advanced in the body of this ruling. E. Disposition. 28. Consequently, the inevitable conclusion I must arrive based on the aforegoing is that the prosecution has failed to establish a prima facie against to warrant the accused be placed on his defence. 29. The case by the prosecution is dismissed in its entirety and as of necessity the accused is acquitted under section 210 of the Criminal Procedure Code. Right of appeal of 14 days is granted. 30. It is so ordered. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS..31ST…DAY OF …JULY… 2026. F.M. MULAMA. RESIDENT MAGISTRATE In the presence of: Court Assistant: Abuswaleh Idris Tomno-DPP. Ms. Suheila for the accused person. Anwar Salim Islam. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/370/eng@2026-07-31 4

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