1. This appeal arises from the Judgment of the trial court, Hon. M. Obiero (Senior Principal Magistrate) in Kehancha CMCRC No. E857of 2023 delivered on 4.4.2025. The Appellant was charged with two Counts. In count one, he was charged with being in possession of ammunition without a licence contrary to Section 4(2) (a) of the Firearms Act 2012. The particulars of the offence were that on 17.10.2023 at Kehancha Township in Kuria West subcounty of Migori County, the Appellant was found with 2 rounds of live ammunition of 7.62 mm special with intent to commit a felony.
2. In county two, he was charged with preparation to commit a felony contrary to section 308 (1) of the penal code. The Appellant was arraigned and he denied the charges. A plea of not guilty was consequently recorded.
3. The trial court considered the case and rendered Judgment on 4.4.2025. The Court found the Appellant guilty and convicted him on count I and acquitted him on count II. The Appellant was also sentenced to 5 years imprisonment.
4. The Appellant, aggrieved, lodged this appeal challenging both conviction and sentence. It was his case that the ingredients of the offence were not proved beyond reasonable doubt and the sentence imposed was excessive.
Evidence
5. At trial, PW1 was No. 85082 PC Patrick Mwangi of DCI Headquarters. There were robberies in Migori County in October 2023. Officers were dispatched to investigate. On 17.10.2023, they received information that the Appellant was supplying robbers with ammunition. The Appellant was intercepted at Igena area while riding a motorcycle TVS 150 without a registration number. They took him to DCI West Kuria. Two rounds of ammunition calibre 7.62 mm were recovered from a tool box mounted on his motorcycle. They were rolled in white polythene paper. He produced the rounds of ammunition and the motorcycle.
6. PW2 was No. 108616 Corporal Morgan Wekesa of DCI Headquarters. He was in Kehancha on 17.10.2023 on intelligence report that there was a person who was supplying ammunitions. They rushed to Igena. One person was intercepted while riding a red motorcycle. They searched him and found a Maasai sword on his waist. They discovered the motorcycle was blue but covered in red colour. Two ammunitions were recovered. The Appellant alleged that sergeant Hassan of Anti-stock Unit had supplied the ammunition to him.
7. PW3 was No. 803369 PC Dan Jura of DCI Kehancha. He reiterated the testimony of PW1 and PW2. In cross examination, he knew the Appellant as boda boda rider. He did not know where the Appellant was arrested. He did not investigate the matter.
8. PW4 was IP Francis Katori of DCI Headquarters. He was a firearm examiner. He received the two rounds of ammunition as exhibits to conduct an examination. They were two rounds of ammunition. They were manufactured at Kenya Ordinance Factory Corporation. They were suitable for use in AK 47. They were capable of being fired.
9. PW5 No. 74576 Corporal John Njogu reiterated the testimony of PW1, PW2 and PW3.
10. The appellant was placed on his defence. He opted to tender sworn testimony. The Appellant testified on oath as DW1. He testified that he was a boda boda rider. He was in Kehancha on 17.10.2023. Motor vehicle was trailing him at 12.30 pm. 4 people armed with pistols emerged therefrom. They demanded to know whether he was Chacha. They arrested and placed him in the motor vehicle. They took him to Baragoi. One of them rode the motorcycle. They had covered his face. They took him to police station. They told him they had recovered ammunition from his motorcycle. On cross examination, he did not know the source of the ammunitions.
11. DW2 was Paul Marwa. He testified that he witnessed the motor vehicle intercept the Appellant. They saw people conducting search and they recovered a knife.
12. DW3 was Jonah Marwa. He knew the Appellant as bodaboda rider. The Appellant went to his shop and brought some items including a knife.
Submissions
13. The Appellant filed undated submissions by which he submitted that there was no evidence linking him to the crime as the evidence of the witnesses of the Respondent were not supported. He prayed that the conviction be quashed.
Analysis
14. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
15. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
1. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
2. Brennan addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
3. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
4. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
5. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
6. The court in the case of Mashat Muhammed Ali & 8 others v Republic [2012] KEHC 4174(KLR) answered the lower court question in the following manner: “Section 4(1) of the Firearms Act makes it illegal for a person to purchase, acquire or have possession of any firearm or ammunition without a valid Firearms Certificate. It is couched in the following terms;
“Subject to this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a Firearms Certificate in force at the time.”
There would be no difficulty in understanding this provision. It simply outlaws the purchase, acquisition or possession of any firearm or ammunition without a valid Firearms Certificate.”
7. The jurisdiction of this court is to review the evidence as it unfolded in the trial court. In Kiilu & Another vs. Republic [2005]1 KLR 174 , the Court of Appeal stated as follows:-
1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.
8. The Respondent had the burden to prove the charge beyond reasonable doubt. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
16. Evaluating the evidence side by side with the law, I find that the evidence of PW1, PW2, PW3, PW5 and PW6 was in consonance that their ambush was to clear the robbery spate in Migori County. It was alleged that the Appellant was supplying firearms and they intercepted him after their investigations following which they arrested him and recovered two rounds of ammunition from him. PW5 confirmed that the two rounds of ammunition were capable of firing and could be fitted in an AK 47 riffle. This evidence stool rock solid and unshaken. The entire Section 4 of the Act is set out below:
“4. Penalty for purchasing, etc., firearms or ammunition without firearm certificate
(1) Subject to this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a firearm certificate in force at the time.
(1A) No person shall manufacture, assemble, purchase, acquire or have in his possession an armoured vehicle unless he holds a certificate of approval issued under this Act.
(2) If any person—
(a) purchases, acquires or has in his possession any firearm or ammunition without holding a firearm certificate in force at the time, or otherwise than as authorized by a certificate, or, in the case of ammunition, in quantities in excess of those so authorized; or
(b) fails to comply with any condition subject to which a firearm certificate is held by him; or
(c) manufactures, assembles, purchases, acquires or has in his possession an armoured vehicle without approval under subsection (1A), he shall, subject to this Act, be guilty of an offence.
(3) Any person who is convicted of an offence under subsection (2) shall-
(a) if the firearm concerned is a prohibited weapon of a type specified in paragraph (b) of the definition of that term contained in section 2 or the ammunition is ammunition for use in any such firearm be liable to imprisonment for a term of not less than seven years and not more than fifteen years; or
(b) if the firearm is any other type or the ammunition for any weapon not being a prohibited weapon be liable to imprisonment for a term of not less than five, but not exceeding ten years:
Provided that, when the offence for which the person is convicted (not being an offence in relation to a prohibited weapon or to any ammunition therefor) is failure by neglect to renew a firearms certificate such person shall be liable to pay a fine at the rate of five hundred shillings per day for every day or part hereof during which his default continues but so that no person shall be liable to pay a fine greater than the maximum provided by this subsection and if such fine is not paid then to imprisonment for a term not exceeding two years.
27. The term ‘prohibited weapon’ is defined in section 2 of the Act as follows:
“Prohibited weapon” means—
(a) A firearm which is so designed or adapted that-
i. When pressure is applied to the trigger missiles continue to be discharged until such pressure is removed or the magazine or belt containing the missiles is empty; or
ii. For each pressure of the trigger more than one discharge of a missile can take place, unless such firearm has been modified to the satisfaction of the chief licensing officer so as to ensure that for each pressure of the trigger the discharge of only one missile can take place;
(b) any automatic or semi-automatic self-loading military assault rifle of 7.62 mm or 5.56 mm calibre or of any other calibre from time to time specified by the Minister by notice in the Gazette;
(c) a firearm fitted with or including any device, accessory or attachment which reduces or is designed or adapted to reduce the noise or flash caused by discharging such firearm and includes any such separate device, accessory or attachment;
(d) any weapon which can be or is designed or adapted to discharge any noxious liquid, gas or other substance unless such weapon, noxious liquid, gas or other substance are of classes or types authorized by the Minister by notice in the Gazette; and
(e) any firearm or ammunition prescribed or any class or type of firearm or ammunition or any such device, accessory or attachment as is referred to in paragraph (c) prescribed by the Minister by notice in the Gazette;”
17. The defence evidence was that he was arrested as alleged but only a knife was recovered. Cross examination did not puncture the prosecution evidence. Appellant did not shake the evidence of the Respondent. The offence was proved to the required standard and I find no reason to fault the judgment of the trial court. I find no merit in the appeal. The sentence meted out was the minimum sentence.
18. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ ] posited as follows:
11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed
12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below.
13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
19. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR) , where is stated as follows:
Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
20. The appeal lacks merit and is accordingly dismissed.
Determination
21. In the upshot I make the following final orders:
a) This appeal is dismissed.
b) 14 days right of appeal.
c) File is closed.
DELIVERED, DATED and SIGNED at NYERI on this 29 th day of April, 2026 . Judgment delivered through Microsoft Teams Online Platform.
In the presence of: -
Appellant present
Mr. Kihara for the State
Cpl. Muriko at Kendege Prison
Court Assistant – Michael/Martin
Page 13 of 14 M. D. KIZITO, J.
2. In county two, he was charged with preparation to commit a felony contrary to section 308 (1) of the penal code. The Appellant was arraigned and he denied the charges. A plea of not guilty was consequently recorded.
3. The trial court considered the case and rendered Judgment on 4.4.2025. The Court found the Appellant guilty and convicted him on count I and acquitted him on count II. The Appellant was also sentenced to 5 years imprisonment.
4. The Appellant, aggrieved, lodged this appeal challenging both conviction and sentence. It was his case that the ingredients of the offence were not proved beyond reasonable doubt and the sentence imposed was excessive.
Evidence
5. At trial, PW1 was No. 85082 PC Patrick Mwangi of DCI Headquarters. There were robberies in Migori County in October 2023. Officers were dispatched to investigate. On 17.10.2023, they received information that the Appellant was supplying robbers with ammunition. The Appellant was intercepted at Igena area while riding a motorcycle TVS 150 without a registration number. They took him to DCI West Kuria. Two rounds of ammunition calibre 7.62 mm were recovered from a tool box mounted on his motorcycle. They were rolled in white polythene paper. He produced the rounds of ammunition and the motorcycle.
6. PW2 was No. 108616 Corporal Morgan Wekesa of DCI Headquarters. He was in Kehancha on 17.10.2023 on intelligence report that there was a person who was supplying ammunitions. They rushed to Igena. One person was intercepted while riding a red motorcycle. They searched him and found a Maasai sword on his waist. They discovered the motorcycle was blue but covered in red colour. Two ammunitions were recovered. The Appellant alleged that sergeant Hassan of Anti-stock Unit had supplied the ammunition to him.
7. PW3 was No. 803369 PC Dan Jura of DCI Kehancha. He reiterated the testimony of PW1 and PW2. In cross examination, he knew the Appellant as boda boda rider. He did not know where the Appellant was arrested. He did not investigate the matter.
8. PW4 was IP Francis Katori of DCI Headquarters. He was a firearm examiner. He received the two rounds of ammunition as exhibits to conduct an examination. They were two rounds of ammunition. They were manufactured at Kenya Ordinance Factory Corporation. They were suitable for use in AK 47. They were capable of being fired.
9. PW5 No. 74576 Corporal John Njogu reiterated the testimony of PW1, PW2 and PW3.
10. The appellant was placed on his defence. He opted to tender sworn testimony. The Appellant testified on oath as DW1. He testified that he was a boda boda rider. He was in Kehancha on 17.10.2023. Motor vehicle was trailing him at 12.30 pm. 4 people armed with pistols emerged therefrom. They demanded to know whether he was Chacha. They arrested and placed him in the motor vehicle. They took him to Baragoi. One of them rode the motorcycle. They had covered his face. They took him to police station. They told him they had recovered ammunition from his motorcycle. On cross examination, he did not know the source of the ammunitions.
11. DW2 was Paul Marwa. He testified that he witnessed the motor vehicle intercept the Appellant. They saw people conducting search and they recovered a knife.
12. DW3 was Jonah Marwa. He knew the Appellant as bodaboda rider. The Appellant went to his shop and brought some items including a knife.
Submissions
13. The Appellant filed undated submissions by which he submitted that there was no evidence linking him to the crime as the evidence of the witnesses of the Respondent were not supported. He prayed that the conviction be quashed.
Analysis
14. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
15. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
1. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
2. Brennan addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
3. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
4. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
5. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
6. The court in the case of Mashat Muhammed Ali & 8 others v Republic [2012] KEHC 4174(KLR) answered the lower court question in the following manner: “Section 4(1) of the Firearms Act makes it illegal for a person to purchase, acquire or have possession of any firearm or ammunition without a valid Firearms Certificate. It is couched in the following terms;
“Subject to this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a Firearms Certificate in force at the time.”
There would be no difficulty in understanding this provision. It simply outlaws the purchase, acquisition or possession of any firearm or ammunition without a valid Firearms Certificate.”
7. The jurisdiction of this court is to review the evidence as it unfolded in the trial court. In Kiilu & Another vs. Republic [2005]1 KLR 174 , the Court of Appeal stated as follows:-
1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.
8. The Respondent had the burden to prove the charge beyond reasonable doubt. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
16. Evaluating the evidence side by side with the law, I find that the evidence of PW1, PW2, PW3, PW5 and PW6 was in consonance that their ambush was to clear the robbery spate in Migori County. It was alleged that the Appellant was supplying firearms and they intercepted him after their investigations following which they arrested him and recovered two rounds of ammunition from him. PW5 confirmed that the two rounds of ammunition were capable of firing and could be fitted in an AK 47 riffle. This evidence stool rock solid and unshaken. The entire Section 4 of the Act is set out below:
“4. Penalty for purchasing, etc., firearms or ammunition without firearm certificate
(1) Subject to this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a firearm certificate in force at the time.
(1A) No person shall manufacture, assemble, purchase, acquire or have in his possession an armoured vehicle unless he holds a certificate of approval issued under this Act.
(2) If any person—
(a) purchases, acquires or has in his possession any firearm or ammunition without holding a firearm certificate in force at the time, or otherwise than as authorized by a certificate, or, in the case of ammunition, in quantities in excess of those so authorized; or
(b) fails to comply with any condition subject to which a firearm certificate is held by him; or
(c) manufactures, assembles, purchases, acquires or has in his possession an armoured vehicle without approval under subsection (1A), he shall, subject to this Act, be guilty of an offence.
(3) Any person who is convicted of an offence under subsection (2) shall-
(a) if the firearm concerned is a prohibited weapon of a type specified in paragraph (b) of the definition of that term contained in section 2 or the ammunition is ammunition for use in any such firearm be liable to imprisonment for a term of not less than seven years and not more than fifteen years; or
(b) if the firearm is any other type or the ammunition for any weapon not being a prohibited weapon be liable to imprisonment for a term of not less than five, but not exceeding ten years:
Provided that, when the offence for which the person is convicted (not being an offence in relation to a prohibited weapon or to any ammunition therefor) is failure by neglect to renew a firearms certificate such person shall be liable to pay a fine at the rate of five hundred shillings per day for every day or part hereof during which his default continues but so that no person shall be liable to pay a fine greater than the maximum provided by this subsection and if such fine is not paid then to imprisonment for a term not exceeding two years.
27. The term ‘prohibited weapon’ is defined in section 2 of the Act as follows:
“Prohibited weapon” means—
(a) A firearm which is so designed or adapted that-
i. When pressure is applied to the trigger missiles continue to be discharged until such pressure is removed or the magazine or belt containing the missiles is empty; or
ii. For each pressure of the trigger more than one discharge of a missile can take place, unless such firearm has been modified to the satisfaction of the chief licensing officer so as to ensure that for each pressure of the trigger the discharge of only one missile can take place;
(b) any automatic or semi-automatic self-loading military assault rifle of 7.62 mm or 5.56 mm calibre or of any other calibre from time to time specified by the Minister by notice in the Gazette;
(c) a firearm fitted with or including any device, accessory or attachment which reduces or is designed or adapted to reduce the noise or flash caused by discharging such firearm and includes any such separate device, accessory or attachment;
(d) any weapon which can be or is designed or adapted to discharge any noxious liquid, gas or other substance unless such weapon, noxious liquid, gas or other substance are of classes or types authorized by the Minister by notice in the Gazette; and
(e) any firearm or ammunition prescribed or any class or type of firearm or ammunition or any such device, accessory or attachment as is referred to in paragraph (c) prescribed by the Minister by notice in the Gazette;”
17. The defence evidence was that he was arrested as alleged but only a knife was recovered. Cross examination did not puncture the prosecution evidence. Appellant did not shake the evidence of the Respondent. The offence was proved to the required standard and I find no reason to fault the judgment of the trial court. I find no merit in the appeal. The sentence meted out was the minimum sentence.
18. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ ] posited as follows:
11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed
12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below.
13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below.
19. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR) , where is stated as follows:
Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution . Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
20. The appeal lacks merit and is accordingly dismissed.
Determination
21. In the upshot I make the following final orders:
a) This appeal is dismissed.
b) 14 days right of appeal.
c) File is closed.
DELIVERED, DATED and SIGNED at NYERI on this 29 th day of April, 2026 . Judgment delivered through Microsoft Teams Online Platform.
In the presence of: -
Appellant present
Mr. Kihara for the State
Cpl. Muriko at Kendege Prison
Court Assistant – Michael/Martin
Page 13 of 14 M. D. KIZITO, J.