A Nakuru court has set free one Peter Kioko Wambui, who had been charged with being in possession of bhang and a sharp knife at the Free Area in Nakuru East sub-county within Nakuru County.
According to the judgement, Kioko was arrested on July 13, 2022, in circumstances that indicated he was armed with a knife with the intent to commit a felony, namely stealing.
Further, it states that at the same time and place, he was found in possession of 25 rolls of cannabis with a street value of Ksh1,250, contrary to the Narcotic Drugs and Psychotropic Substances (Control) Act (NDPCA).
In his ruling on February 10, 2026, Senior Principal Magistrate Aloyce Peter Ndege stated that the prosecution did not prove its case against Kioko.
No evidence
Ndege noted that the accused person cannot be said to have intended to commit a felony, as there is no evidence adduced which proximates the possession of the kitchen knife with the commission of a felony.
He avers that it is not easy to discern his real purpose for having the knife and what he intended to use it for from the evidence presented in court.
“What if the accused intended to use the kitchen knife for its intended use, that is, preparation of food, and not necessarily to harm or threaten anyone?” Magistrate Ndege paused in his judgement.
“I am not therefore satisfied that the kitchen knife which the accused herein is alleged to have been found with was intended to be used to commit a felony. A key ingredient of the offence in the first count has therefore not been proved to the required standard,” Magistrate Ndege ruled.
Definition of cannabis discussed
While dismissing the count where the accused was charged with being in possession of marijuana, the learned magistrate states that not all parts of the cannabis plant have been illegalised by the NDPCA.
According to the court, the definition of cannabis in section 2 of the act is clearly restrictive in nature, and when read alongside the provisions of section 3(2)(a) of the same act and the first schedule thereof, restricts the applicability of the provisions to the ‘flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by tops) from which the resin has not been extracted’.
“The evidence laid by the prosecution does not therefore exclude the seeds and leaves. The prosecution has thus failed to prove to the required standard of beyond reasonable doubt that the plant material herein was cannabis as defined by the provisions of section 2 of NDPCA,” the judgement reads.
Magistrate Ndege ordered the accused to be released from remand custody, where he has been since his arrest in 2022, forthwith unless otherwise lawfully held.
“I do hereby acquit the accused herein of the offences of preparation to commit a felony contrary to section 308(1) of the Penal Code and being in possession of cannabis contrary to section 4(a)(ii) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994 as amended by the Narcotic Drugs and Psychotropic Substances (Control) (Amendment) Act, 2022,” Ndege ordered.
