The police’s move to conduct analysis on an alleged heroin recovered in Kikambala, Kilifi County without involving three people charged with drug trafficking has led to their acquittal.
According to the court, the police should have involved Mr Swaleh Yussuf and his wife Fatuma Asma Ahmed when samples of heroine worth Sh2.5 million was taken to Nairobi for further tests.
A preliminary test conducted on this substance had produced a negative result for heroine but a further one done in the absence of the two turned out positive .
“What confirmation do the accused have that whatever substance that tested negative during the preliminary test in their presence is the same one that was subjected to the further test in Nairobi? Chief Magistrate Florence Macharia, now a High Court Judge asked.
Ms Macharia further said that it was not in doubt that there was a substance that upon confirmatory tests being done in Nairobi turned out to be heroine.
“What is in doubt is whether this is the same substance that was recovered from the accused house. It is trite that every doubt in a criminal case is resolved in favour of an accused person,” she said, adding that it was a grave mistake on the part of the state to have the further test conducted in the absence of the two.
With this grave failure in relation to the preliminary and confirmatory tests, the couple were not found guilty of this offence.
On the second count involving trafficking of heroin worth Sh47 million, the court noted that the house where this substance was recovered did not belong to Swaleh and his wife, and that the owner of the house was not charged.
The court also noted that this offence and the first one was similar, save for the weight of the recovered substance.
“So, what was the connection between count two and the two accused persons? It was simply circumstantial evidence mixed with hearsay evidence. I proceed to rule that the evidence on who was the owner of the bag amounted to hearsay, the same is inadmissible,” she said, adding that this charge was not proved beyond reasonable doubt and acquitted the two.
Mr Swaleh, Ms Mohamed and Masuo Bakari Tajiri were in 2017 charged with several offences of drug trafficking and money laundering.
They were accused of trafficking 16,843 grams of heroin worth over Sh50 million.
They were also charged that on February 4, 2017, they engaged in agreement for purchase of four motor vehicles at a cost of Sh7.6 million, while knowing that the money was the proceeds of crime namely trafficking in narcotic drugs, whose effects was to conceal the source of the said money.
The state had alleged that the offences were committed in Kikambala and Bamburi, Mombasa County on February 12, 2017.
The court heard that a team of police officers stormed Mr Swaleh’s house where they did a recovery of first a substance, they believed was narcotic.
At the time, Head of Anti-Narcotic Drug Unit Dr Hamisi Masa had deployed police officers to Mombasa and Kilifi counties on counter narcotic operation.
McDonald Okoth, who was in the team, said when he entered Mr Swaleh’s house, they conducted a search and recovered money in various currencies wrapped in a paper bag.
“Upon checking the wardrobe, another polythene paper containing a brownish substance was recovered. In the compound, we recovered another greenish substance believed to be cannabis sativa,” he said.
While conducting the search, the officer testified that they received an intelligence that there was another huge consignment of drugs hidden in Bamburi.
“We searched the bedroom and sitting room but did not recover anything. As we were proceeding with the search a lady, we found in the house came and told us that she did not want to be in trouble,” he told the court.
Here, the woman explained to the officers that Mr Swaleh had visited the home the previous day and left a bag for safe keeping. The court heard the bag was brought to the house by another man who was with Mr Swaleh. The man promised the lady that Swaleh would call.
“Mr Swaleh had not called the lady by the time the police stormed the house,” the court heard. The lady, who was Swaleh’s brother-in-law produced the bag. A greenish sheet covering a brownish substance was discovered inside the bag. There was another substance covered with blue, white sheets recovered under the matres.
“The substances were packed in different sizes. Some were in powder form while others were in granules and pebbles. There were 58 packages in total. A search certificate was prepared,” the police told the court.
Another officer Joshua Okalo told the court that the drugs recovered at Kikambala were valued at Sh2.5 million , while those recovered in Bamburi were worth Sh47.9 million.
Government Analyst Dennis Owino told the court that preliminary test on the drugs recovered at Kikambala was not conclusive as it turned negative. The other 58 samples recovered in Bamburi turned positive for heroin. These tests were done in the presence of the accused persons.
It was described as a presumptive test and it returned what was referred to a false negative.The analyst said he did the test alone in Nairobi.
The court heard that the drugs recovered in Kikambala were taken to Nairobi for further test, which turned out positive for heroin. “The further tests were done in the absence of the accused persons or their representatives,” the court heard.
In their defence , Mr Swaleh and Ms Mohamed said no drug was recovered in their house.
“Nothing was recovered, save for a substance that was found at the top of my wardrobe. I had never seen the substance,” Mr Swaleh said.
Ms Mohamed echoed her husband’s sentiment, saying that whatever the police recovered from her house turned negative for any narcotic substance.
The court however convicted them of the offence of money laundering after finding that they had no legal business to support the millions that they had deposited in their accounts and used to buy the four vehicles.
They are awaiting sentencing.