The Appellant DENNIS ONDARA CLEMENT was charged with the offence of being in possession of a firearm contrary to Section 4A(1) (a) of the Firearms Act CAP 41 Laws of Kenya.
Particulars of the offense were that on 19th May 2023 at Isebania township in Kuria West Sub-County in Migori County the Appellant was found in possession of a firearm namely CESKA pistol S/NO B683176 without a ilcense or permit or other lawful justification from the licensing officer.
In Count 2 the Appellant was also charged with the offence of being in possession of ammunition without a firearms certificate contrary to Section 4 A (1) (a) of the Firearms Act No 6 of 2010.
Particulars of the offense were that on 19th May 2023 at Isebania township in Kuria West Sub-County in Migori County the Appellant without reasonable excuse ,was found in possession of a 28 rounds of ammunition caliber 9 mm special without a license or permit or other lawful justification from the licensing officer.
In the 3rd Count the Appellant was charged with the offence of preparation to commit a felony contrary to Section 308 (1) of the Penal Code.
Particulars of the offense were that on 19th May 2023 at Isebania township in Kuria West Sub-County in Migori County the Appellant was found armed with an offensive weapon namely CESKA pistol S/NO B683176 and 28 rounds of ammunition caliber 9 mm special in circumstances that indicated that the Appellant was so armed with the intent to commit a felony namely robbery with violence.
Based on the evidence of four (4) prosecution witnesses and the Appellant’s sworn testimony the Trial Magistrate convicted the Appellant and sentenced him to serve 7 years’ imprisonment in each of the 3 counts to run concurrently.
The Appellant was aggrieved by the conviction and sentence and he lodged his Petition of Appeal filed on 8/05/2024 on the following grounds:
a. The learned Trial Magistrate erred both in law and fact in convicting and sentencing the Appellant to 7 years without observing that the offence charged was not proved beyond reasonable doubt.
b. The learned Trial Magistrate erred both in law and fact by convicting and sentencing the Appellant based on shaky police investigations.
c. The learned Trial Magistrate erred both in law and fact by not considering the Appellant was not represented by a lawyer as noted under Article 50 (2)(h) of the Constitution of Kenya
d. The learned Trial Magistrate erred both in law and fact to have relied on non-factual evidence with any tangible or concrete supporting proof from the police or the witness who testified against the Appellant.
e. The learned Trial Magistrate erred both in law and fact in finding that the Prosecution proved its case beyond reasonable doubt
f. The learned Trial Magistrate erred both in law and fact by failing to comply with Section 333(2) of the Criminal Procedure Code.
Reasons wherefore the Appellant prayed that his appeal be allowed wholly, the conviction and sentence by the trial court be quashed and set aside respectively.
The prosecution’s case was supported by the evidence of five (5) witnesses who testified as follows: -
PW1- SSP Alex Chirchir examined the ceska pistol in question and prepared Report dated 9th June 2023 and confirmed that it was in good working condition and suitable in use in exhibits A1 which were being rounds of ammunition that were capable of being fired.
PW2 testified that when they arrested the Appellant at Isebania they recovered Ceska Pistol S/No B683176 with a magazine loaded with 14 rounds of ammunition. That upon escorting the Appellant to Migori they conducted further search and from a waist bag the Appellant was having a screw driver, bolt, pliers and 14 rounds of ammunition were recovered wrapped in a carrier bag.
PW3 testified that on arrest of the Appellant in Isebania he was disarmed by PW2 when the pistol was recovered from him together with 14 rounds of ammunition in the magazine. PW3 reiterated the evidence of PW2 that a further search was conducted on the Appellant in Migori and from a waist bag they recovered a pliers, bolt, spanner and 14 rounds of ammunition wrapped in a carrier bag.
PW4 similarly reiterated the evidence of the other prosecution witnesses as to how the Appellant was arrested and the Ceska pistol and rounds of ammunition recovered both in the magazine and waist bag.
At the close of the Prosecution’s case, the Appellant was placed on his defense and he stated that on 19th May 2023 he was in a police vehicle after he was arrested and taken to Isebania at night. He testified further that on 18th May 2023 he was at Daraja Mbili Market in Kisii where he was selling 2nd hand clothes. That at 6.00pm he went to a barber shop and when he came from therein he was accosted by four men who assaulted him and he became unconscious. That when he came to at 11.00pm he found medicine in his pocket and his clothes were soaked in blood and he said he had intravenous injection on his hand. That the 4 people who accosted him introduced themselves as police officers and interrogated him and he told them he lived and did business in Busia. That they told him to hand over his phone but he told them he had left it in his boss’ car. That the Appellant was shown his photograph and when he asked what offence he had committed and he was told he was suspect of rape case. That they told him to talk to his boss and when he told them that the boss was in Sirare he was blind folded and told to lead them to his office. That the vehicle left and he did not know where he was being taken.
The Appellant said that the following day he found himself in Sirare and when he refused to take them to his boss’s office he was beaten and taken to Isebania Police Station and later to Migori Police Station. That at Migori Police Station he was again blind folded and his clothes removed and asked where the gun was. That he was taken to hospital for treatment and thereafter taken to his brother in-laws place in Ruai where search was conducted in the sister’s house as well as the sister’s co-wife house and some items recovered.
The Appellant testified further that he was taken to Nyamira High Court where he was charged with the offence of murder. That he was remanded at Kisii Prison and later arraigned in Migori CMC and charged with the offence herein. The Appellant said he knew nothing about the charge against him and he did not have the pistol produced in court neither was he preparing to commit a felony. He said it was true he was being trailed for the offence of murder.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 20th August 2024 and he submitted that when the charge was read in court and provisions of Article 50 (2) of the Constitution explained he was not in court and therefore the mandatory provision was not complied with.
The Appellant cited the case of Michael Kinuthia Muturi Vs Republic Appeal No 51 of 2002 to support his argument that crucial witnesses were not called to testify against him and so he was erroneously convicted.
He submitted further that the mobile phones allegedly used to trace him were not produced in court and no forensic evidence was availed from Safaricom mobile phone provider to prove that he was tracked using a mobile phone. He therefore argued that he was not accorded fair trial.
The Appellant also submitted that the prosecution’s case was riddled with contradictions and he pointed the contradictions between the evidence of PW2, PW3 and PW4 as to where and how exhibits were recovered and he relied on the holding in Ramkrishana Denkerrana Pandya Vs Republic Appeal No 06 of 1990 EACA 93
The Appellant also pointed out the contradiction between the evidence of PW3 and 4 as to the number of ammunitions in the magazine and whether they had the Appellant’s photograph or not. The Appellant said the Prosecution was not truthful in its evidence. He urged the court to allow his appeal.
The Respondent’s submissions are dated 3rd December 2024 and it was to the effect that the firearm and the ammunition recovered from the Appellant on arrest by PW2, 3 and 4 who were trailing him to Migori were confirmed by PW1 the Ballistics Expert as firearm and ammunition respectively in terms of the Firearms Act.
It was further submitted that the Ceska pistol recovered from the Appellant upon examination was linked to 9 shooting incidents that were linked to active robbery with violence cases pending in courts. That the Appellant was charged with the murder of a couple in the High Court at Nyamira with the offence of murder of a couple in CR. C. No E010 of 2023 a proof that the firearm in question had history of having been used in previous robberies and the Appellant was on the run at the time of arrest. It was therefore submitted the there was proof that the Appellant was preparing to commit a felony.
In regard to the ground that the Appellant was not accorded legal representation the Respondent argued that the right to free legal representation is not absolute and it is only mandatory where an accused is charged with the offence of murder and in capital offences where substantial injustice is likely to arise. It was submitted that the Appellant demonstrated that he clearly understood the charges against him and he was able to cross examine the prosecution witnesses as well as mounting his defense and his rights under Article 50(2) (g) & (h) were not infringed.
The Respondent urged the court to uphold the conviction and sentence by the Trial Court.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated that the duty of the court on first appeal as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
(a) Whether the offence charged was proved beyond reasonable doubt and Whether the Prosecution evidence was corroborated or full of contradictions.
(b) Whether the Appellant’s rights under Article 50 (2) (g) & (h) of the Constitution of Kenya were infringed
(c) Whether the learned Trial Magistrate failed to comply with Section 333(2) of the Criminal Procedure Code.
On whether the offence charged was proved beyond reasonable doubt and whether the Prosecution evidence was corroborated and/or full of contradictions, The Prosecution witnesses P.C. Kennedy Wainaina , P. C. Francis Kyeni and CPL Fredrick Odemba from DCI Headquarters were assigned to investigate the murder of a couple who were USA citizens in Nyamira County. Upon conducting forensic investigations into the mobile phone numbers of the deceased they noticed Mpesa transactions between the said phones and one Douglas Mungeu which withdrawals were done in Co-Operative Bank at Limuru on the night that the couple was murdered. That their investigation led them to arrest Peter Njoroge Kirika who informed them it was the Appellant herein who had sent him the money.
PW2,3 and 4 said that they tracked the Appellant who was in Ruai and who left Nairobi at 10.00pm and proceeded to Narok. That when he got to Kisii he switched off his phone and they lost him. That on 19th May 2023 the Appellant was again located when he switched on his phone in Migori and when they arrived in Migori the Appellant was at Isebania, The witnesses said they reported to the DCI Migori and Isebania to assist with reinforcement and when the Appellant was traced seated at a shop near KCB in Isebania he noticed the officers and drew his pistol but he was subdued and disarmed and Ceska pistol S/No B683176 with 14 rounds of ammunition in its magazine and a further 14 Rounds of ammunition, pliers, screw driver bolt spanner and ID card were recovered in a waist bag that he was carrying. An inventory was prepared and duly signed by the officers and the Appellant respectively.
That when the Officers accompanied the Appellant to his home in Ruai in Kiambu County they recovered a pistol holster and pocket phone. The Appellant was charged with the offence of murder in Nyamira High Court and in the Migori Magistrate’s Court with the offence herein.
From the above evidence it is clear that the witnesses corroborated each other in substance and the claim by the Appellant that there were contradictions do not go to the crux of the charge against him that a Ceska pistol was recovered in his possession and that he was not licensed to carry any firearm. The Prosecution witnesses testified that they arrested the Appellant at Isebania and not in Kisii as claimed by the Appellant and his allegations are therefore highly challenged by the evidence of the 3 prosecution witnesses and cannot be sustained.
In consideration that the Appellant was arrested and the subject Ceska Pistol loaded with 14 rounds of ammunition recovered and additional 14 Rounds of ammunition recovered in the waist bag the Appellant was carrying it was proper to conclude that the Appellant not having been licensed could not have been in possession of the said pistol with any good intention. The Trial Magistrate therefore properly drew the conclusion that the Appellant was guilty of preparing to commit a felony.
On whether the Appellant’s rights under Article 50 (2) (g) & (h) of the Constitution of Kenya were infringed, Article 50 (2) (g) of the Constitution provides:
Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
The supreme court in Karisa Chengo considered the said Article 50 (2) (h). The court stated as follows at paragraph 94 :-
“In the above context, it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:
(a) (i)the seriousness of the offence;
(b) (ii)the severity of the sentence;
(c) (iii)the ability of the accused person to pay for his own legal representation;
(d) (iv)whether the accused is a minor;
(e) (v)the literacy of the accused;
(f) (vi)the complexity of the charge against the accused;
(g) 10.It therefore means that the said right is not an automatic one and an accused person has to demonstrate that they will suffer substantial injustice as expressed in the Karisa Chengo case. In Kenya today only person charge d with murder or children in conflict with the law are entitled to automatic legal representation at State expense. Other people have to prove that they will suffer substantial injustice.
Further in David Njoroge Macharia (2011) eKLR, the Court of Appeal expounded on what substantial injustice entails when it said: -
“Article 50 of the Constitution sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a state appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”. Persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expenses.”
A perusal of the Trial Court’s record shows that on 29th May 2023 when the matter was 1st in court the Appellant was not present and a production order was issued for 6th June 2023 on which date the Appellant was arraigned in court later at 10.30Am and the charge read over to him. It is true that the hand written record does not show if the Appellant was informed of the right to choose, and be represented by an advocate promptly however, the Appellant did not raise the issue with the Trial Court and he ably mounted his defense and cross examined all the prosecution witnesses in a manner that would make the court believe that he was thereby not prejudiced in any way during his trial.
Regarding the complaint that Article 50 (2) (h) was not complied with the said Article requires that an accused be informed of the right to be assigned counsel at the State expense if substantial injustice would otherwise result. He is also supposed to be informed of this right promptly. From the record, the appellant was not informed of the said right. However, the said right is not absolute. One has to demonstrate that substantial injustice would result to him if the right is not complied with.
This court finds that the Appellant has not demonstrated that he suffered substantial injustice by failure of the court to appoint an advocate for him at the expense of the state.
On whether the learned Trial Magistrate failed to comply with Section 333(2) of the Criminal Procedure Code.
The Appellant was arraigned in court on 29th May 2023 and judgement delivered on 13th December 2023. The Appellant was in remand custody because of the murder trial he was facing in the High Court at Nyamira and as such he was entitled to the benefit of the provisions of Section 333(2) of the Criminal Procedure Code. His sentence should therefore run from the date he was arraigned in court on 29th May 2023.
Based on the above findings this appeal lacks merits on conviction and sentence and the same is dismissed save for the remand period which should be factored in the Appellant’s sentence.
Right of appeal 14 days explained.
Dated Signed and Delivered at Migori this 12th Day of June 2025
Particulars of the offense were that on 19th May 2023 at Isebania township in Kuria West Sub-County in Migori County the Appellant was found in possession of a firearm namely CESKA pistol S/NO B683176 without a ilcense or permit or other lawful justification from the licensing officer.
In Count 2 the Appellant was also charged with the offence of being in possession of ammunition without a firearms certificate contrary to Section 4 A (1) (a) of the Firearms Act No 6 of 2010.
Particulars of the offense were that on 19th May 2023 at Isebania township in Kuria West Sub-County in Migori County the Appellant without reasonable excuse ,was found in possession of a 28 rounds of ammunition caliber 9 mm special without a license or permit or other lawful justification from the licensing officer.
In the 3rd Count the Appellant was charged with the offence of preparation to commit a felony contrary to Section 308 (1) of the Penal Code.
Particulars of the offense were that on 19th May 2023 at Isebania township in Kuria West Sub-County in Migori County the Appellant was found armed with an offensive weapon namely CESKA pistol S/NO B683176 and 28 rounds of ammunition caliber 9 mm special in circumstances that indicated that the Appellant was so armed with the intent to commit a felony namely robbery with violence.
Based on the evidence of four (4) prosecution witnesses and the Appellant’s sworn testimony the Trial Magistrate convicted the Appellant and sentenced him to serve 7 years’ imprisonment in each of the 3 counts to run concurrently.
The Appellant was aggrieved by the conviction and sentence and he lodged his Petition of Appeal filed on 8/05/2024 on the following grounds:
a. The learned Trial Magistrate erred both in law and fact in convicting and sentencing the Appellant to 7 years without observing that the offence charged was not proved beyond reasonable doubt.
b. The learned Trial Magistrate erred both in law and fact by convicting and sentencing the Appellant based on shaky police investigations.
c. The learned Trial Magistrate erred both in law and fact by not considering the Appellant was not represented by a lawyer as noted under Article 50 (2)(h) of the Constitution of Kenya
d. The learned Trial Magistrate erred both in law and fact to have relied on non-factual evidence with any tangible or concrete supporting proof from the police or the witness who testified against the Appellant.
e. The learned Trial Magistrate erred both in law and fact in finding that the Prosecution proved its case beyond reasonable doubt
f. The learned Trial Magistrate erred both in law and fact by failing to comply with Section 333(2) of the Criminal Procedure Code.
Reasons wherefore the Appellant prayed that his appeal be allowed wholly, the conviction and sentence by the trial court be quashed and set aside respectively.
The prosecution’s case was supported by the evidence of five (5) witnesses who testified as follows: -
PW1- SSP Alex Chirchir examined the ceska pistol in question and prepared Report dated 9th June 2023 and confirmed that it was in good working condition and suitable in use in exhibits A1 which were being rounds of ammunition that were capable of being fired.
PW2 testified that when they arrested the Appellant at Isebania they recovered Ceska Pistol S/No B683176 with a magazine loaded with 14 rounds of ammunition. That upon escorting the Appellant to Migori they conducted further search and from a waist bag the Appellant was having a screw driver, bolt, pliers and 14 rounds of ammunition were recovered wrapped in a carrier bag.
PW3 testified that on arrest of the Appellant in Isebania he was disarmed by PW2 when the pistol was recovered from him together with 14 rounds of ammunition in the magazine. PW3 reiterated the evidence of PW2 that a further search was conducted on the Appellant in Migori and from a waist bag they recovered a pliers, bolt, spanner and 14 rounds of ammunition wrapped in a carrier bag.
PW4 similarly reiterated the evidence of the other prosecution witnesses as to how the Appellant was arrested and the Ceska pistol and rounds of ammunition recovered both in the magazine and waist bag.
At the close of the Prosecution’s case, the Appellant was placed on his defense and he stated that on 19th May 2023 he was in a police vehicle after he was arrested and taken to Isebania at night. He testified further that on 18th May 2023 he was at Daraja Mbili Market in Kisii where he was selling 2nd hand clothes. That at 6.00pm he went to a barber shop and when he came from therein he was accosted by four men who assaulted him and he became unconscious. That when he came to at 11.00pm he found medicine in his pocket and his clothes were soaked in blood and he said he had intravenous injection on his hand. That the 4 people who accosted him introduced themselves as police officers and interrogated him and he told them he lived and did business in Busia. That they told him to hand over his phone but he told them he had left it in his boss’ car. That the Appellant was shown his photograph and when he asked what offence he had committed and he was told he was suspect of rape case. That they told him to talk to his boss and when he told them that the boss was in Sirare he was blind folded and told to lead them to his office. That the vehicle left and he did not know where he was being taken.
The Appellant said that the following day he found himself in Sirare and when he refused to take them to his boss’s office he was beaten and taken to Isebania Police Station and later to Migori Police Station. That at Migori Police Station he was again blind folded and his clothes removed and asked where the gun was. That he was taken to hospital for treatment and thereafter taken to his brother in-laws place in Ruai where search was conducted in the sister’s house as well as the sister’s co-wife house and some items recovered.
The Appellant testified further that he was taken to Nyamira High Court where he was charged with the offence of murder. That he was remanded at Kisii Prison and later arraigned in Migori CMC and charged with the offence herein. The Appellant said he knew nothing about the charge against him and he did not have the pistol produced in court neither was he preparing to commit a felony. He said it was true he was being trailed for the offence of murder.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 20th August 2024 and he submitted that when the charge was read in court and provisions of Article 50 (2) of the Constitution explained he was not in court and therefore the mandatory provision was not complied with.
The Appellant cited the case of Michael Kinuthia Muturi Vs Republic Appeal No 51 of 2002 to support his argument that crucial witnesses were not called to testify against him and so he was erroneously convicted.
He submitted further that the mobile phones allegedly used to trace him were not produced in court and no forensic evidence was availed from Safaricom mobile phone provider to prove that he was tracked using a mobile phone. He therefore argued that he was not accorded fair trial.
The Appellant also submitted that the prosecution’s case was riddled with contradictions and he pointed the contradictions between the evidence of PW2, PW3 and PW4 as to where and how exhibits were recovered and he relied on the holding in Ramkrishana Denkerrana Pandya Vs Republic Appeal No 06 of 1990 EACA 93
The Appellant also pointed out the contradiction between the evidence of PW3 and 4 as to the number of ammunitions in the magazine and whether they had the Appellant’s photograph or not. The Appellant said the Prosecution was not truthful in its evidence. He urged the court to allow his appeal.
The Respondent’s submissions are dated 3rd December 2024 and it was to the effect that the firearm and the ammunition recovered from the Appellant on arrest by PW2, 3 and 4 who were trailing him to Migori were confirmed by PW1 the Ballistics Expert as firearm and ammunition respectively in terms of the Firearms Act.
It was further submitted that the Ceska pistol recovered from the Appellant upon examination was linked to 9 shooting incidents that were linked to active robbery with violence cases pending in courts. That the Appellant was charged with the murder of a couple in the High Court at Nyamira with the offence of murder of a couple in CR. C. No E010 of 2023 a proof that the firearm in question had history of having been used in previous robberies and the Appellant was on the run at the time of arrest. It was therefore submitted the there was proof that the Appellant was preparing to commit a felony.
In regard to the ground that the Appellant was not accorded legal representation the Respondent argued that the right to free legal representation is not absolute and it is only mandatory where an accused is charged with the offence of murder and in capital offences where substantial injustice is likely to arise. It was submitted that the Appellant demonstrated that he clearly understood the charges against him and he was able to cross examine the prosecution witnesses as well as mounting his defense and his rights under Article 50(2) (g) & (h) were not infringed.
The Respondent urged the court to uphold the conviction and sentence by the Trial Court.
ANALYSIS AND DETERMINATION
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated that the duty of the court on first appeal as follows:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
(a) Whether the offence charged was proved beyond reasonable doubt and Whether the Prosecution evidence was corroborated or full of contradictions.
(b) Whether the Appellant’s rights under Article 50 (2) (g) & (h) of the Constitution of Kenya were infringed
(c) Whether the learned Trial Magistrate failed to comply with Section 333(2) of the Criminal Procedure Code.
On whether the offence charged was proved beyond reasonable doubt and whether the Prosecution evidence was corroborated and/or full of contradictions, The Prosecution witnesses P.C. Kennedy Wainaina , P. C. Francis Kyeni and CPL Fredrick Odemba from DCI Headquarters were assigned to investigate the murder of a couple who were USA citizens in Nyamira County. Upon conducting forensic investigations into the mobile phone numbers of the deceased they noticed Mpesa transactions between the said phones and one Douglas Mungeu which withdrawals were done in Co-Operative Bank at Limuru on the night that the couple was murdered. That their investigation led them to arrest Peter Njoroge Kirika who informed them it was the Appellant herein who had sent him the money.
PW2,3 and 4 said that they tracked the Appellant who was in Ruai and who left Nairobi at 10.00pm and proceeded to Narok. That when he got to Kisii he switched off his phone and they lost him. That on 19th May 2023 the Appellant was again located when he switched on his phone in Migori and when they arrived in Migori the Appellant was at Isebania, The witnesses said they reported to the DCI Migori and Isebania to assist with reinforcement and when the Appellant was traced seated at a shop near KCB in Isebania he noticed the officers and drew his pistol but he was subdued and disarmed and Ceska pistol S/No B683176 with 14 rounds of ammunition in its magazine and a further 14 Rounds of ammunition, pliers, screw driver bolt spanner and ID card were recovered in a waist bag that he was carrying. An inventory was prepared and duly signed by the officers and the Appellant respectively.
That when the Officers accompanied the Appellant to his home in Ruai in Kiambu County they recovered a pistol holster and pocket phone. The Appellant was charged with the offence of murder in Nyamira High Court and in the Migori Magistrate’s Court with the offence herein.
From the above evidence it is clear that the witnesses corroborated each other in substance and the claim by the Appellant that there were contradictions do not go to the crux of the charge against him that a Ceska pistol was recovered in his possession and that he was not licensed to carry any firearm. The Prosecution witnesses testified that they arrested the Appellant at Isebania and not in Kisii as claimed by the Appellant and his allegations are therefore highly challenged by the evidence of the 3 prosecution witnesses and cannot be sustained.
In consideration that the Appellant was arrested and the subject Ceska Pistol loaded with 14 rounds of ammunition recovered and additional 14 Rounds of ammunition recovered in the waist bag the Appellant was carrying it was proper to conclude that the Appellant not having been licensed could not have been in possession of the said pistol with any good intention. The Trial Magistrate therefore properly drew the conclusion that the Appellant was guilty of preparing to commit a felony.
On whether the Appellant’s rights under Article 50 (2) (g) & (h) of the Constitution of Kenya were infringed, Article 50 (2) (g) of the Constitution provides:
Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
The supreme court in Karisa Chengo considered the said Article 50 (2) (h). The court stated as follows at paragraph 94 :-
“In the above context, it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:
(a) (i)the seriousness of the offence;
(b) (ii)the severity of the sentence;
(c) (iii)the ability of the accused person to pay for his own legal representation;
(d) (iv)whether the accused is a minor;
(e) (v)the literacy of the accused;
(f) (vi)the complexity of the charge against the accused;
(g) 10.It therefore means that the said right is not an automatic one and an accused person has to demonstrate that they will suffer substantial injustice as expressed in the Karisa Chengo case. In Kenya today only person charge d with murder or children in conflict with the law are entitled to automatic legal representation at State expense. Other people have to prove that they will suffer substantial injustice.
Further in David Njoroge Macharia (2011) eKLR, the Court of Appeal expounded on what substantial injustice entails when it said: -
“Article 50 of the Constitution sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a state appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”. Persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expenses.”
A perusal of the Trial Court’s record shows that on 29th May 2023 when the matter was 1st in court the Appellant was not present and a production order was issued for 6th June 2023 on which date the Appellant was arraigned in court later at 10.30Am and the charge read over to him. It is true that the hand written record does not show if the Appellant was informed of the right to choose, and be represented by an advocate promptly however, the Appellant did not raise the issue with the Trial Court and he ably mounted his defense and cross examined all the prosecution witnesses in a manner that would make the court believe that he was thereby not prejudiced in any way during his trial.
Regarding the complaint that Article 50 (2) (h) was not complied with the said Article requires that an accused be informed of the right to be assigned counsel at the State expense if substantial injustice would otherwise result. He is also supposed to be informed of this right promptly. From the record, the appellant was not informed of the said right. However, the said right is not absolute. One has to demonstrate that substantial injustice would result to him if the right is not complied with.
This court finds that the Appellant has not demonstrated that he suffered substantial injustice by failure of the court to appoint an advocate for him at the expense of the state.
On whether the learned Trial Magistrate failed to comply with Section 333(2) of the Criminal Procedure Code.
The Appellant was arraigned in court on 29th May 2023 and judgement delivered on 13th December 2023. The Appellant was in remand custody because of the murder trial he was facing in the High Court at Nyamira and as such he was entitled to the benefit of the provisions of Section 333(2) of the Criminal Procedure Code. His sentence should therefore run from the date he was arraigned in court on 29th May 2023.
Based on the above findings this appeal lacks merits on conviction and sentence and the same is dismissed save for the remand period which should be factored in the Appellant’s sentence.
Right of appeal 14 days explained.
Dated Signed and Delivered at Migori this 12th Day of June 2025