The police move to conduct analysis on alleged heroin seized in Kikambala, Kilifi County, without involving the 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 were taken to Nairobi for further tests.
A preliminary test conducted on the 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 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’s 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 failure in relation to the preliminary and confirmatory tests, the couple were not found guilty of the offence.
On the second count involving trafficking in heroin worth Sh47 million, the court noted that the house where the substance was found did not belong to Mr Yussuf 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 seized 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 the charge was not proved beyond reasonable doubt, and acquitted the two.
Mr Yussuf, Ms Ahmed and Masuo Bakari Tajiri (now deceased) were in 2017 charged with several offences of drug trafficking and money laundering.
They were accused of trafficking in 16,843 grammes of heroin worth more than Sh50 million.
They were also charged with engaging in an agreement for purchase of four motor vehicles at a cost of Sh7.6 million on February 4, 2017, while knowing that the money was proceeds of crime, namely trafficking in narcotic drugs, whose effect was to conceal the source of the money.
The state had alleged that the offences were committed in Kikambala and in Bamburi, Mombasa County, on February 12, 2017.
The court heard that a team of police officers stormed Mr Yussuf’s house, where they found a substance they believed was narcotic drugs.
At the time, the head of the Anti-Narcotic Drug Unit, Dr Hamisi Masa, had deployed police officers to Mombasa and Kilifi on an anti-drugs operation.
Mr McDonald Okoth, who was in the team, said when he entered Mr Yussuf’s house, officers conducted a search and found money in various currencies wrapped in a plastic 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, he told the court, officers received 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.
The woman explained to the officers that Mr Yussuf 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 Yussuf. The man promised the woman that Mr Yussuf would call.
“Mr Yussuf had not called the lady by the time the police stormed the house,” the court heard. The lady, who was Swaleh’s sister-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 mattress.
“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.
Government Analyst Dennis Owino told the court that a preliminary test on the drugs found at Kikambala was not conclusive, because it turned negative. The other 58 samples found 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 as a false negative. The analyst said he did the test alone in Nairobi.
The court heard that the drugs seized in Kikambala were taken to Nairobi for a further test, which was 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 Yussuf and Ms Ahmed said no drug was found 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 Yussuf said.
Ms Mohamed backed her husband, saying that whatever the police found in her house tested negative for any narcotic substance.
The court, however, convicted the couple for money laundering, after finding that they had no legal business to support the millions they had deposited into their accounts and which they used to buy the four vehicles.
They are awaiting sentencing. Bakari, their co-accused, died as the case went on. His decomposing body was found in the bush in Thika in January 2021.
