1. The Appellant herein was charged alongside 2 others before the trial court with the offence of preparing to commit a felony contrary to Section 308(1) of the Penal code.
2. The Particulars of the offence were that on 7th February 2024 at around 2300 hours at Ranen Township within Awendo Sub-County, the Appellants were jointly found armed with offensive weapons namely knives, pliers and torch in circumstances indicating that they were preparing to commit a felony.
3. The Appellant and co-accused were arraigned before the trial magistrate’s court where they pleaded not guilty to the charge.
4. The prosecution lined a total of 3 witnesses. PW1 PC Joseph Omondi No.109802 attached to Ranen Police station who testified that on 8th February 2024 at around 0010 hours while on patrol at Ranen center received information that there were two people near the Centre. That they found Arnold Otieno and Kennedy Omondi near the stage. That the said persons informed them that they were from Kisumu and were waiting for the arrival of Okello from Kisumu. That in their possession was a military bag, two knives, a torch and a metallic object (pong) which the two could not explain their use. That they were escorted to the station and were also speaking to someone over the phone. That he returned to the Centre and found the appellant, searched him and found a knife on his waist and arrested him. That he arrested them because they could not explain what they were doing. On cross examination, he stated that the appellant was arrested on 8th February 2024 at around 0010 hours and that he cannot mention the name of the security officer.
5. PW2 PC Reuben Kite No. 70227 attached to Ranen Police station stated that on 8th February 2024 at around 0010 hours, he and PC Omondi were on patrol when they received information from one of the guards that there were two people in the market. They proceeded to the place and arrested Kennedy Omondi and Arnold Otieno and recovered from them two knives, a rope, a pong metal and a torch. That Arnold was on a phone call while the two were being escorted to the station, communicating with the Appellant. That the Officers went back to the stage and arrested the appellant. That they interrogate the three, who informed them that they were from Kisumu and charged them because they could not establish what they were doing. On cross examination by the second accused (the Appellant herein) he stated that he never recovered a panga but only recovered a knife. That the appellant was arrested on 8th February 2024 past midnight and that Ranen has a lot of murder and them as police officers had to work on any information given to them. That they took the appellants number from 1st accused person and charged them with preparation to commit a felony not stealing.
6. PW3 P. C. David Murando, No. 11777, the investigating officer testified that he picked the suspects from Ranen and took them to Awendo Police Station after they were arrested on 8th February 2024 by PC Kite and PC Omondi. That the suspects could not explain why they were in Ranen in possession of knives, a rope, metallic (pong), a torch, military bag and a barrette resembling that of police officers. That the two suspects who had earlier been arrested stated that they were from Kisumu. That he charged them with the offence but did not interrogate them. On cross examination by the 2nd Accused, now the Appellant, he stated that he received the exhibits and does not know who was arrested with all the items as he did not arrest the accused persons. That his colleagues arrested the accused, conducted a search and recovered the said items and did not plant any of the items on the accused persons.
7. Upon being placed on their defense, the DW1, Arnold Otieno Onyango stated that he comes from Kisumu and is a mason. That he received a call to come to work for 1 month and came in accompany of the 3rd accused person. That they arrived around 8.00 pm at Ranen and had to wait for the 2nd accused (the Appellant) to arrive. That engineer Joram called them and asked them to book a room but were arrested by two police officers who took their phones while they were communicating with the 2nd accused (appellant). On cross examination, he stated that he was not arrested with any knife as he is a mason.
8. DW2, Felix Odhiambo Omondi testified that he comes from Kisumu and is a mason and a boda boda rider. That he was called by the 1st and 3rd accused persons who informed him that they were in Ranen for some work, that he should join them. That he left Kisumu at 5.00 pm and arrived at 9.00 pm and that the 1st and 3rd accused were arrested before his arrival. That he called Kennedy several times but his calls were not answered. That he later met the 1st and 3rd accused in the cell. That they called Joram who went to the station but he (the accused) does not know what happened. On cross examination he confirmed that he was arrested at Ranen, Joram gave them a job, he did not have a knife in his waist, the police officers are not known to him and that he had no bad relationship the officers.
9. DW3 Kennedy Omondi Odhiambo testified that he comes from Kisumu and he is a mason. That the travelled together with the 1st accused person to Ranen to do some work for Joram, who was not in Ranen at the time they arrived. That they were new to the area and while waiting for the 2nd accused, the two were arrested at stage by two officers in preparation to commit a felony. That the 2nd accused called and when they informed the police, the phone was taken and the 2nd accused later arrested and joined them in cell. On cross examination, he confirmed that he was arrested at Ranen stage, Joram knew that they were new in the area and was not their witness.
10. In a judgement delivered on 11th June 2024, the learned trial magistrate found the accused persons guilty as charged and convicted them accordingly. The Appellant had absconded court before delivery of the judgement. Judgement was therefore delivered in his absence and he was sentenced to serve two years imprisonment while his co-accused were placed on probation for one year. Warrant of arrest was issued against the Appellant and upon his arrest about five months later, his sentence of two years was changed to five (5) years imprisonment from 15th October 2025.
11. Aggrieved by the conviction and sentence, the accused by a Petition of Appeal dated 29th October 2025 sought to overturn the findings of the trial court on six grounds:
i. THAT the learned Magistrate erred in law and facts by convicting the appellant for an offence of preparation to commit a felony while there was instructive no sufficient evidence to sustain the particular offence.
ii. THAT the trial magistrate blundered in law in failing to find that the glaring discrepancies in the evidence tendered by the prosecution incapable of sustaining the offence of preparation to commit felony as per charged.
iii. THAT the trial court erred in law by failing to comply with Articles 50(10) (2) (5) (a) (b) of the Constitution of Kenya
iv. That the Trial Magistrate erred in law by failing to find that there was neither sufficient, proper nor conclusive evidence to sustain an offence of preparing to commit a felony for the specific charge before the trial court.
v. THAT the sentence passed/meted against the Appellant by the learned trial was manifestly draconian, disproportionately punitive and unfairly oppressive considering the facts and circumstances of the alleged offence.
vi. The trial court failed to give chance to the appellant to mitigate and to be accorded a fair sentence of non-custodial sentence as other co-accused in the case due to the circumstances of the alleged offence.
The Appellant thus urged the court to quash the conviction and sentence, set the appellant free and reduce the sentence.
The appeal was heard by way of submissions.
The Appellant’s submissions are undated dated and are to the effect that the 3 prosecution witnesses did not produce any inventory to show what was found in whose possession. It is also submitted that the Prosecution did not establish any overt act tending to show that a felony was about to be committed. Reliance was placed on MIGORI HCC.REVISION NO. 26 of 2015 NYAMBEGA MUNENE VS REPUBLIC. Although the Appellant did not refer to any specific holding in the authority the High Court upheld a seven-year prison sentence for preparing to commit a felony.
Police arrested Nyambega at Migori Stadium on November 16, 2013, with weapons and tools. These included a panga, a knife, pliers, a torch, and a hammer. Officers concluded these items showed an intent to steal.
Nyambega pleaded guilty to the charges in the lower court. He then appealed his sentence, arguing it was too harsh. The High Court reviewed the case and dismissed his appeal, keeping the original sentence intact.
The Appellant further submitted that the court did not comply with sentencing policy guidelines. That on 20th June 2024, the court ordered that the Appellant upon arrest to serve a jail term of 2 years in prison but changed on 15th October 2025 where the court enhanced his jail term to 5 years.
It was also his submission that the judgement was manifestly harsh and excessive and the same should be revised to the period already served or to a probation or any other order the court dims fit.
The Prosecution in their submissions dated 9th May 2024 identified three issues for determination. On whether the trial court erred in law by not complying with articles 50 (2) (g) (h) of the constitution of Kenya, they submitted that the right to free legal representation by state is not an absolute right and only mandatory when the accused is charged with an offence whose penalty is death. It was their further submission that the court did not infringe the right of the accuse during trial with reliance being placed on Mokaya vs. Republic (Criminal appeal E020 of 2023) [2024]KEHC
On whether the sentence was excessive, it was submitted that the sentence was sufficient, reliance being placed in the case of Kimani Gacheru vs. Republic (2002)eKLR.
On whether or not the offence was proven, the prosecution submitted that all the elements of the offence were proven and placer reliance in the case of Mwaura and others vs the republic, further urging this court to uphold the conviction of 2 years from the date of conviction.
ANALYSIS AND DETERMINATION
This being a first appeal, this court is required to consider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witness testify. The principle was settled in Okeno vs Republic (1972) EA 32.
I have carefully reviewed the entire record of the proceedings before the trial court together with the grounds of appeal and the rival submissions made by the parties. I find the following as issues for determination.
i. Whether the offence of preparation to commit a felony was proven.
ii. Whether the court erred in not complying with Article 50 (1), (2) (5) (a), (b)
iii. Whether the court failed to comply with the sentencing guidelines while sentencing the Appellant.
iv. Whether the court failed to give chance to the Appellant to mitigate.
Whether the offence of preparation to commit a felony was proven.
12. Section 308 (1) of the Penal Code provides thus: “Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.”
13. In the case of Manuel Legasiani & 3 others v Republic [2000] eKLR as was rightfully cited by the trial court, the Court of Appeal opined: “The word ‘Preparation’ is not a term of art. In its ordinary meaning it means "the act or an instance of preparing" or "the process of being prepared". This is the meaning ascribed to the word ‘Preparation’ in the Concise Oxford Dictionary, Eighth Edition. To prove the offence in question some overt act, to show that a felony was about to be committed, has to be shown.
14. It is the duty of the prosecution to establish beyond reasonable doubt that the accused was found armed with a dangerous or offensive weapon and that the surrounding circumstances pointed to preparation to commit a felony. Mere suspicion however strong cannot substitute proof.
15. In Criminal Appeal 12 of 2019 David Ndiema Moikut v Republic [2019] eKLR the Court held that: “It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve.” Holmes C.J in Commonwealth v Peaslee (177 Mass 267, 272, 59 N.E Rep 55) held as follows: “That an overt act, although coupled with an intent to commit a crime, commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparation may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable …, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”
16. From the above authorities, the court can only convict if it is convinced by the evidence on record that the accused person had intentions to commit a felony and had begun to carry out that intention in a manner likely to achieve that which they intended.
17. In the instant case, the testimonies of the prosecution witnesses were that on the 8th February 2024 at around 10.00pm while on patrol within Ranen received information that there were two men at the stage. That they went and arrested them and upon searching them recovered knives, pong metal torch and a rope. That when they asked the suspects where they were coming from, they said they were masons from Kisumu and were waiting for another person to arrive. That the two were escorted to station and the police officers went back to the stage and found the person the two suspects were waiting for, and arrested him too.
18. It was the prosecution’s evidence that the three were preparing to commit a felony. That they arrested and charged the three suspects because Ranen has a lot of murder cases and that the three were now suspected to be preparing to commit a crime.
The Court of Appeal in the case of Joan Chebichii Sawe v Republic Crim. App. No. 2 of 2002 had this say about suspicion in a criminal case: “The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt.” Mere suspicion that the three were preparing to commit a felony because the area is full of murder cases cannot hold any water.
The prosecution did not lead any evidence to an overt act by the three accused persons. There was no evidence of them trying to flee at the sight of police officers or of them trying to break into any of the shops within Ranen Centre. Their explanation to the police why they were in Ranen was very consistent and even after they were taken into custody, the police officers returned to the stage and found the Appellant, who the accused, were waiting for from Kisumu and arrested him too. The explanation by the Appellant and his co-accused was consistent and satisfactory in the circumstances and it weakened the Prosecution witnesses’ evidence that they were found preparing to commit a felony.
Whether the court erred in not complying with Article 50 (1), (2) (5) (a), (b)
Article 50 (1) (2) provides thus;
50. Fair hearing
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—(i)an offence in Kenya; or
(ii) a crime under international law;
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
(5) An accused person—
(a) charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
(b) has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.
In summary, Article 50 embodies fair hearing which is a right of every accused person. From the record of the proceeding, it is quite clear that the trial was conducted in a fair manner, the rights of the accused persons being taken into consideration, including the right to bail and bond. The accused right to legal representation was also conveyed to them but none requested for one. Upon conclusion of the case, the judgement was read in the absence of the accused Appellant who willingly chose not to attend court.
This court therefore finds that the trial court did violate the provisions of Article 50 (1) (2) and 5 (a), (b)
Whether the court failed to comply with the sentencing guidelines while sentencing the Appellant.
Since the Appellant absconded court, he was sentenced to serve 2 years imprisonment in absentia while his co-accused were placed on probation for one year. He was arrested and arraigned before the trial judge for sentencing on 15/10/2024. The trial magistrate then handed him a 5 years jail term. This court agrees with the Appellant and state that although he jumped bail, 5 years in prison was handed in error. The trial court became functus once it sentenced the Appellant in absentia and upon arrest, he was to start serving the sentence and not to be taken back to court. The only court that had powers to enhance the jail term was the High court upon appeal by either the Appellant or the Respondent.
On the issue that the court did not give the Appellant an opportunity to mitigate before his sentence, this court finds that the same was not available to him. He was never present on the judgement day nor the sentencing day. From the record, his co-accused who were present were given opportunity to mitigate their sentences and were admitted to non-custodial sentence.
In light of the foregoing, this court is of the view that the Learned Magistrate erred in convicting the Appellant and co-accused since the prosecution did not prove that the knife, military bag, metallic pong, a torch and pliers were in possession of the Appellant and co-accused for purposes of committing a felony. The allegation that Ranen has a lot of murder cases could not be a reason to impute guilt on the part of the accused persons. The evidence provided by the prosecution herein fell far short of the required threshold as a result of which the appeal against both conviction and sentence succeeds.
This appeal was only in respect to the Appellant who was the 2nd accused person in the trial court. The evidence against which the Appellant was convicted is the same evidence upon which the 2 co-accused were convicted. The evidential deficiencies identified by this court are common to all the accused persons. Despite the two co-accused not preferring an appeal against their conviction, this court cannot close its eyes and permit convictions which it has found to be unsupported by evidence to see the light of the day.
It is therefore found that their convictions are equally unsafe for the reasons already set out in this judgment. The prosecution failed to establish the offence beyond reasonable doubt against any of the accused persons.
DISPOSITION
19. The Appellants appeal against conviction is hereby allowed.
20. The conviction is quashed and the sentence of 5 years imprisonment set aside.
21. The Appellant shall be released forthwith unless otherwise lawfully held.
22. The conviction against the Appellants co-accused is hereby quashed and the non-custodial sentences imposed upon them set aside.
23. Any Probation or other obligations arising from those convictions shall stand discharged.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 16TH JULY 2026
2. The Particulars of the offence were that on 7th February 2024 at around 2300 hours at Ranen Township within Awendo Sub-County, the Appellants were jointly found armed with offensive weapons namely knives, pliers and torch in circumstances indicating that they were preparing to commit a felony.
3. The Appellant and co-accused were arraigned before the trial magistrate’s court where they pleaded not guilty to the charge.
4. The prosecution lined a total of 3 witnesses. PW1 PC Joseph Omondi No.109802 attached to Ranen Police station who testified that on 8th February 2024 at around 0010 hours while on patrol at Ranen center received information that there were two people near the Centre. That they found Arnold Otieno and Kennedy Omondi near the stage. That the said persons informed them that they were from Kisumu and were waiting for the arrival of Okello from Kisumu. That in their possession was a military bag, two knives, a torch and a metallic object (pong) which the two could not explain their use. That they were escorted to the station and were also speaking to someone over the phone. That he returned to the Centre and found the appellant, searched him and found a knife on his waist and arrested him. That he arrested them because they could not explain what they were doing. On cross examination, he stated that the appellant was arrested on 8th February 2024 at around 0010 hours and that he cannot mention the name of the security officer.
5. PW2 PC Reuben Kite No. 70227 attached to Ranen Police station stated that on 8th February 2024 at around 0010 hours, he and PC Omondi were on patrol when they received information from one of the guards that there were two people in the market. They proceeded to the place and arrested Kennedy Omondi and Arnold Otieno and recovered from them two knives, a rope, a pong metal and a torch. That Arnold was on a phone call while the two were being escorted to the station, communicating with the Appellant. That the Officers went back to the stage and arrested the appellant. That they interrogate the three, who informed them that they were from Kisumu and charged them because they could not establish what they were doing. On cross examination by the second accused (the Appellant herein) he stated that he never recovered a panga but only recovered a knife. That the appellant was arrested on 8th February 2024 past midnight and that Ranen has a lot of murder and them as police officers had to work on any information given to them. That they took the appellants number from 1st accused person and charged them with preparation to commit a felony not stealing.
6. PW3 P. C. David Murando, No. 11777, the investigating officer testified that he picked the suspects from Ranen and took them to Awendo Police Station after they were arrested on 8th February 2024 by PC Kite and PC Omondi. That the suspects could not explain why they were in Ranen in possession of knives, a rope, metallic (pong), a torch, military bag and a barrette resembling that of police officers. That the two suspects who had earlier been arrested stated that they were from Kisumu. That he charged them with the offence but did not interrogate them. On cross examination by the 2nd Accused, now the Appellant, he stated that he received the exhibits and does not know who was arrested with all the items as he did not arrest the accused persons. That his colleagues arrested the accused, conducted a search and recovered the said items and did not plant any of the items on the accused persons.
7. Upon being placed on their defense, the DW1, Arnold Otieno Onyango stated that he comes from Kisumu and is a mason. That he received a call to come to work for 1 month and came in accompany of the 3rd accused person. That they arrived around 8.00 pm at Ranen and had to wait for the 2nd accused (the Appellant) to arrive. That engineer Joram called them and asked them to book a room but were arrested by two police officers who took their phones while they were communicating with the 2nd accused (appellant). On cross examination, he stated that he was not arrested with any knife as he is a mason.
8. DW2, Felix Odhiambo Omondi testified that he comes from Kisumu and is a mason and a boda boda rider. That he was called by the 1st and 3rd accused persons who informed him that they were in Ranen for some work, that he should join them. That he left Kisumu at 5.00 pm and arrived at 9.00 pm and that the 1st and 3rd accused were arrested before his arrival. That he called Kennedy several times but his calls were not answered. That he later met the 1st and 3rd accused in the cell. That they called Joram who went to the station but he (the accused) does not know what happened. On cross examination he confirmed that he was arrested at Ranen, Joram gave them a job, he did not have a knife in his waist, the police officers are not known to him and that he had no bad relationship the officers.
9. DW3 Kennedy Omondi Odhiambo testified that he comes from Kisumu and he is a mason. That the travelled together with the 1st accused person to Ranen to do some work for Joram, who was not in Ranen at the time they arrived. That they were new to the area and while waiting for the 2nd accused, the two were arrested at stage by two officers in preparation to commit a felony. That the 2nd accused called and when they informed the police, the phone was taken and the 2nd accused later arrested and joined them in cell. On cross examination, he confirmed that he was arrested at Ranen stage, Joram knew that they were new in the area and was not their witness.
10. In a judgement delivered on 11th June 2024, the learned trial magistrate found the accused persons guilty as charged and convicted them accordingly. The Appellant had absconded court before delivery of the judgement. Judgement was therefore delivered in his absence and he was sentenced to serve two years imprisonment while his co-accused were placed on probation for one year. Warrant of arrest was issued against the Appellant and upon his arrest about five months later, his sentence of two years was changed to five (5) years imprisonment from 15th October 2025.
11. Aggrieved by the conviction and sentence, the accused by a Petition of Appeal dated 29th October 2025 sought to overturn the findings of the trial court on six grounds:
i. THAT the learned Magistrate erred in law and facts by convicting the appellant for an offence of preparation to commit a felony while there was instructive no sufficient evidence to sustain the particular offence.
ii. THAT the trial magistrate blundered in law in failing to find that the glaring discrepancies in the evidence tendered by the prosecution incapable of sustaining the offence of preparation to commit felony as per charged.
iii. THAT the trial court erred in law by failing to comply with Articles 50(10) (2) (5) (a) (b) of the Constitution of Kenya
iv. That the Trial Magistrate erred in law by failing to find that there was neither sufficient, proper nor conclusive evidence to sustain an offence of preparing to commit a felony for the specific charge before the trial court.
v. THAT the sentence passed/meted against the Appellant by the learned trial was manifestly draconian, disproportionately punitive and unfairly oppressive considering the facts and circumstances of the alleged offence.
vi. The trial court failed to give chance to the appellant to mitigate and to be accorded a fair sentence of non-custodial sentence as other co-accused in the case due to the circumstances of the alleged offence.
The Appellant thus urged the court to quash the conviction and sentence, set the appellant free and reduce the sentence.
The appeal was heard by way of submissions.
The Appellant’s submissions are undated dated and are to the effect that the 3 prosecution witnesses did not produce any inventory to show what was found in whose possession. It is also submitted that the Prosecution did not establish any overt act tending to show that a felony was about to be committed. Reliance was placed on MIGORI HCC.REVISION NO. 26 of 2015 NYAMBEGA MUNENE VS REPUBLIC. Although the Appellant did not refer to any specific holding in the authority the High Court upheld a seven-year prison sentence for preparing to commit a felony.
Police arrested Nyambega at Migori Stadium on November 16, 2013, with weapons and tools. These included a panga, a knife, pliers, a torch, and a hammer. Officers concluded these items showed an intent to steal.
Nyambega pleaded guilty to the charges in the lower court. He then appealed his sentence, arguing it was too harsh. The High Court reviewed the case and dismissed his appeal, keeping the original sentence intact.
The Appellant further submitted that the court did not comply with sentencing policy guidelines. That on 20th June 2024, the court ordered that the Appellant upon arrest to serve a jail term of 2 years in prison but changed on 15th October 2025 where the court enhanced his jail term to 5 years.
It was also his submission that the judgement was manifestly harsh and excessive and the same should be revised to the period already served or to a probation or any other order the court dims fit.
The Prosecution in their submissions dated 9th May 2024 identified three issues for determination. On whether the trial court erred in law by not complying with articles 50 (2) (g) (h) of the constitution of Kenya, they submitted that the right to free legal representation by state is not an absolute right and only mandatory when the accused is charged with an offence whose penalty is death. It was their further submission that the court did not infringe the right of the accuse during trial with reliance being placed on Mokaya vs. Republic (Criminal appeal E020 of 2023) [2024]KEHC
On whether the sentence was excessive, it was submitted that the sentence was sufficient, reliance being placed in the case of Kimani Gacheru vs. Republic (2002)eKLR.
On whether or not the offence was proven, the prosecution submitted that all the elements of the offence were proven and placer reliance in the case of Mwaura and others vs the republic, further urging this court to uphold the conviction of 2 years from the date of conviction.
ANALYSIS AND DETERMINATION
This being a first appeal, this court is required to consider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witness testify. The principle was settled in Okeno vs Republic (1972) EA 32.
I have carefully reviewed the entire record of the proceedings before the trial court together with the grounds of appeal and the rival submissions made by the parties. I find the following as issues for determination.
i. Whether the offence of preparation to commit a felony was proven.
ii. Whether the court erred in not complying with Article 50 (1), (2) (5) (a), (b)
iii. Whether the court failed to comply with the sentencing guidelines while sentencing the Appellant.
iv. Whether the court failed to give chance to the Appellant to mitigate.
Whether the offence of preparation to commit a felony was proven.
12. Section 308 (1) of the Penal Code provides thus: “Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.”
13. In the case of Manuel Legasiani & 3 others v Republic [2000] eKLR as was rightfully cited by the trial court, the Court of Appeal opined: “The word ‘Preparation’ is not a term of art. In its ordinary meaning it means "the act or an instance of preparing" or "the process of being prepared". This is the meaning ascribed to the word ‘Preparation’ in the Concise Oxford Dictionary, Eighth Edition. To prove the offence in question some overt act, to show that a felony was about to be committed, has to be shown.
14. It is the duty of the prosecution to establish beyond reasonable doubt that the accused was found armed with a dangerous or offensive weapon and that the surrounding circumstances pointed to preparation to commit a felony. Mere suspicion however strong cannot substitute proof.
15. In Criminal Appeal 12 of 2019 David Ndiema Moikut v Republic [2019] eKLR the Court held that: “It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve.” Holmes C.J in Commonwealth v Peaslee (177 Mass 267, 272, 59 N.E Rep 55) held as follows: “That an overt act, although coupled with an intent to commit a crime, commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparation may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable …, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.”
16. From the above authorities, the court can only convict if it is convinced by the evidence on record that the accused person had intentions to commit a felony and had begun to carry out that intention in a manner likely to achieve that which they intended.
17. In the instant case, the testimonies of the prosecution witnesses were that on the 8th February 2024 at around 10.00pm while on patrol within Ranen received information that there were two men at the stage. That they went and arrested them and upon searching them recovered knives, pong metal torch and a rope. That when they asked the suspects where they were coming from, they said they were masons from Kisumu and were waiting for another person to arrive. That the two were escorted to station and the police officers went back to the stage and found the person the two suspects were waiting for, and arrested him too.
18. It was the prosecution’s evidence that the three were preparing to commit a felony. That they arrested and charged the three suspects because Ranen has a lot of murder cases and that the three were now suspected to be preparing to commit a crime.
The Court of Appeal in the case of Joan Chebichii Sawe v Republic Crim. App. No. 2 of 2002 had this say about suspicion in a criminal case: “The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt.” Mere suspicion that the three were preparing to commit a felony because the area is full of murder cases cannot hold any water.
The prosecution did not lead any evidence to an overt act by the three accused persons. There was no evidence of them trying to flee at the sight of police officers or of them trying to break into any of the shops within Ranen Centre. Their explanation to the police why they were in Ranen was very consistent and even after they were taken into custody, the police officers returned to the stage and found the Appellant, who the accused, were waiting for from Kisumu and arrested him too. The explanation by the Appellant and his co-accused was consistent and satisfactory in the circumstances and it weakened the Prosecution witnesses’ evidence that they were found preparing to commit a felony.
Whether the court erred in not complying with Article 50 (1), (2) (5) (a), (b)
Article 50 (1) (2) provides thus;
50. Fair hearing
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not—(i)an offence in Kenya; or
(ii) a crime under international law;
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
(5) An accused person—
(a) charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
(b) has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.
In summary, Article 50 embodies fair hearing which is a right of every accused person. From the record of the proceeding, it is quite clear that the trial was conducted in a fair manner, the rights of the accused persons being taken into consideration, including the right to bail and bond. The accused right to legal representation was also conveyed to them but none requested for one. Upon conclusion of the case, the judgement was read in the absence of the accused Appellant who willingly chose not to attend court.
This court therefore finds that the trial court did violate the provisions of Article 50 (1) (2) and 5 (a), (b)
Whether the court failed to comply with the sentencing guidelines while sentencing the Appellant.
Since the Appellant absconded court, he was sentenced to serve 2 years imprisonment in absentia while his co-accused were placed on probation for one year. He was arrested and arraigned before the trial judge for sentencing on 15/10/2024. The trial magistrate then handed him a 5 years jail term. This court agrees with the Appellant and state that although he jumped bail, 5 years in prison was handed in error. The trial court became functus once it sentenced the Appellant in absentia and upon arrest, he was to start serving the sentence and not to be taken back to court. The only court that had powers to enhance the jail term was the High court upon appeal by either the Appellant or the Respondent.
On the issue that the court did not give the Appellant an opportunity to mitigate before his sentence, this court finds that the same was not available to him. He was never present on the judgement day nor the sentencing day. From the record, his co-accused who were present were given opportunity to mitigate their sentences and were admitted to non-custodial sentence.
In light of the foregoing, this court is of the view that the Learned Magistrate erred in convicting the Appellant and co-accused since the prosecution did not prove that the knife, military bag, metallic pong, a torch and pliers were in possession of the Appellant and co-accused for purposes of committing a felony. The allegation that Ranen has a lot of murder cases could not be a reason to impute guilt on the part of the accused persons. The evidence provided by the prosecution herein fell far short of the required threshold as a result of which the appeal against both conviction and sentence succeeds.
This appeal was only in respect to the Appellant who was the 2nd accused person in the trial court. The evidence against which the Appellant was convicted is the same evidence upon which the 2 co-accused were convicted. The evidential deficiencies identified by this court are common to all the accused persons. Despite the two co-accused not preferring an appeal against their conviction, this court cannot close its eyes and permit convictions which it has found to be unsupported by evidence to see the light of the day.
It is therefore found that their convictions are equally unsafe for the reasons already set out in this judgment. The prosecution failed to establish the offence beyond reasonable doubt against any of the accused persons.
DISPOSITION
19. The Appellants appeal against conviction is hereby allowed.
20. The conviction is quashed and the sentence of 5 years imprisonment set aside.
21. The Appellant shall be released forthwith unless otherwise lawfully held.
22. The conviction against the Appellants co-accused is hereby quashed and the non-custodial sentences imposed upon them set aside.
23. Any Probation or other obligations arising from those convictions shall stand discharged.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 16TH JULY 2026