How DPP lost heroin case against Mombasa couple

However, during the operation on July 26, 2017, no drugs were found in the vehicle belonging to Mr Swaleh Yusuf and his wife Ms Asma Abdalla.

The officers then decided to search Mr Yusuf's house, where they claimed to have found 201.1 grammes of heroin worth more than Sh603,000.

Mr Yusuf vehemently protested throughout the search, claiming that his lawyer had been denied access and that the police were planting drugs on him for the second time.

In protest, he refused to sign the inventory and search certificates that had allegedly been produced at his home.

According to the police, they had spotted a vehicle whose registration had been reported to them and laid an ambush in Kikambala.

When they approached the vehicle, three occupants escaped and threw items out of the car.

Two bags were found at the scene but no drugs were found. A sum of Sh503,400 was seized.

In court documents, police claimed that Mr Yusuf and Ms Abdalla led them to their house where a search was conducted and a powdery substance suspected to be a narcotic drug was found.

The substance was weighed by Chief Inspector Elizabeth Lumumba, who issued a seizure warrant for both the substance and the motor vehicle.

Read: Clergyman arrested in Suba for allegedly defiling girl during prayer session

During the trial, Mr Yusuf stated that he and his wife were standing at the gate of the Beach Apartment when they saw a vehicle approaching.

Fearing that the occupants were gangsters because of the large amount of money they were carrying, they threw the bag containing the money.

Mr Yusuf explained that when the vehicle reached them, people claiming to be police officers got out and searched the vehicles and took the bag containing the money.

He also stated that the police officers refused his request for the presence of his lawyer. 

Ms Abdalla corroborated Yusuf's statement. 

Both denied having committed the drug trafficking offence and claimed that they had been framed by the police.

After reviewing the evidence, a Shanzu court acquitted them of the charge, finding that the state had failed to prove its case against them.

And now the Director of Public Prosecutions, who sought to overturn the acquittal, has lost an appeal in the case.

The DPP said the lower court erred in acquitting the couple against the weight of the evidence presented.

But Mombasa High Court judge Ann Ong'injo dismissed the appeal on Monday, saying the prosecution had failed to refute the fact that there was no warrant to search Mr Yusuf's house and that Ms Abdalla was not even present when the alleged search was carried out. 

Also read: Man seeks help after policeman runs over him in 'love rivalry' in Mlolongo

“DPP having failed to submit on the grounds raised on appeal, this court finds that the appeal cannot succeed and the same is therefore dismissed,” said the judge. 

The prosecution argued that the defence had not successfully challenged the prosecution's evidence and criticised the judge for failing to assess the evidence impartially.

Through their lawyer, Jared Magolo, the couple said the magistrate correctly analysed the prosecution's evidence and rightly acquitted them.

Justice Ong'injo agreed with the couple, noting that the prosecution had failed to present its case in the appeal, resulting in the dismissal of the appeal.

The judge concluded that the DPP's appeal had no prospect of success as it had not filed its submissions by the time of the judgment.

[email protected]