1. This appeal emanates from the judgement, conviction and sentence of Hon. A.G. Munene, PM delivered on the 28th April, 2023 in Maua Criminal Case No. E385 of 2022.
2. The Appellant was charged in the first Count with the offence of being in possession of a firearm without a firearm certificate contrary to Section 4(2)(a) of the Firearms Act Cap 114 Laws of Kenya.
3. The particulars of the charge as stated in the charge sheet were that on the 11th day of March, 2022 at Ndunyu village, Nkandone Sub-location, Naathu Location, Igembe Sub-county within Meru County, the Appellant was found to be in possession of a firearm make G3 serial number G3 – A3 6044388 without a firearm certificate.
4. In the second count, the Appellant faced a charge of being in possession of ammunitions contrary to Section 4(2)(a) of the Firearms Act Cap 114 Laws of Kenya.
5. The particulars of the charge were that on the on the 11th day of March, 2022 at Ndunyu village, Nkandone Sub-location, Naathu Location, Igembe Sub-county within Meru County, the Appellant was found to be in possession of 21 rounds of ammunition of 7.62 by 51mm calibre.
6. The Appellant pleaded not guilty and a full trial was conducted. The prosecution case was founded on the evidence of five (5) witnesses. The defence evidence was based on the Appellant’s unsworn testimony.
7. There are nine grounds of appeal presented by the Appellant vide his Petition of Appeal filed on 12th May 2023. The said grounds of appeal are as follows:
a. That the learned trial Magistrate erred in matters of law and fact by failing to note that the evidence adduced was not sufficient to sustain the conviction.
b. That the learned trial Magistrate erred in matters of law and fact by failing to order the sentences to run concurrently instead of consecutive.
c. That the learned trial Magistrate erred in law and facts by failing to note that the sentence is harsh add excessive in the circumstances of this case.
d. That the learned trial Magistrate erred in law and facts by failing to note that the key witnesses were not called.
e. That the learned trial Magistrate erred in law and fact by rejecting the Appellant’s defence without giving any cogent reason.
f. That the learned trial Magistrate erred in matters of law and fact by failing to consider pre-trial detention period pursuant to Section 333(2) of Criminal Procedure Code.
g. That the learned trial Magistrate erred in law and facts by failing to note that the key witnesses were not called.
h. That the learned trial Magistrate erred in law and facts by not observing that the evidence adduced by the prosecution witnesses were un-collaborating and inconsistence (sic).
i. That the learned trial Magistrate erred in law and fact by rejecting the Appellant’s defence without giving any cogent reason. (repeated).
8. The appeal was canvassed by way of written submissions filed by the appellant and oral submissions made by Ms. Rotich, learned Prosecution Counsel.
9. I have had the occasion to peruse and consider the Petition of Appeal, the submissions by the two sides, the Record of Appeal and the lower court record.
10. This being the first appellate court, my duty is to re-evaluate and re-assess 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 while keeping in mind that the witnesses did not testify before me and I did not see or hear the witnesses when they testified (see Okeno v Republic [1972] EA 32.)
11. In Kiilu & Another vs. Republic [2005]1 KLR 174, the court stated thus:
“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. 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.”
12. The first prosecution witness (PW1) was Abel Mugambi. The witness testified and told the trial court that on the 11th March, 2022 at about 9pm, he was at Laare area. The witness found the Appellant, whom he knew well, in a canteen. The Appellant was drunk and was creating a disturbance.
13. PW1 testified that he noticed dark grey item protruding from the Appellant’s jacket which resembled a firearm nozzle. He informed a neighbour, one Gerald and the two proceeded to Laare Police Station where they made a report. It was PW1’s testimony that the Appellant was later arrested.
14. Stephen Ntongai testified as PW2 and told the trial court that on the 11th March, 2022 at about 9pm he was at the shopping centre taking tea and that after a short while he heard a gunshot. It was his testimony that one Cyrus and one Githunguri informed him that his home had been invaded. The witness then proceeded to his home in the company of Githunguri and upon arrival at about 1am, the two hid themselves. He then saw the Appellant, who was armed with a firearm and who was at the time eating and was in the company of two others.
15. When the Appellant and his confederates finished eating, PW2 confronted them as they walked out. The two men who were in the company of the Appellant fled. PW2 and Githunguri subdued the Appellant and cut the sling of the firearm, which he was holding. They wrested the gun away from him and detained him. The Appellant managed to flee and the two called for help and together with other members of the public, took the firearm to the area chief and that the Appellant was later apprehended.
16. PW2 testified that it was around 1am but that they had a torch and as such could see the appellant properly and that the appellant was in the company of 2 other persons. It was his testimony that they hid and as the appellant and his team were walking out, they confronted him and managed to get him and cut the sling of the gun. PW2 testified that the appellant and his team eventually managed to escaped but that they took the firearm to the area chief. PW2 reiterated his testimony in cross-examination.
17. The witness stated that he was able to see and recognize the Appellant, who was well known to him, as he had a delight torch that provided sufficient light.
18. PW3 was John Kithua Mwirambua, the Senior Chief of Athi location. The witness testified and told the trial court that he was at his home on 11th March, 2022 when at about 9pm he received phone calls from residents of the area that they had heard gunshots from the neighbouring location and later at Ndunyu village within the area of jurisdiction of the chief.
19. The witness stated that later that night, PW2 and one Cyrus Kailikia reported that they had recovered a firearm from the Appellant, who was known to the chief, who managed to escape and that the two handed over the firearm to the witness.
20. The witness stated that the issue was reported to the police. He handed over the firearm to the police.
21. The prosecution called Corporal Simon Muchemi, a firearms examiner, as PW4. The witness stated that he examined the firearm and 21 rounds of ammunition and prepared a report on his findings. In his opinion and/or findings, that the witness recorded in his report, the firearm was a German Heckler and Koch, serial number 6044388. The rounds of ammunition were 7.62 x 51mm type. The firearm was complete in its combated parts.
22. On testing it, the firearm successfully discharged 3 rounds of ammunition. The witness concluded that the firearm was a firearm within the meaning under the Firearms Act and that the 21 rounds of ammunition were capable of being fired.
23. The witness produced the following items as exhibits:
- G3 rifle.
- 1 magazine.
- 21 rounds of ammunition.
- 3 spent cartridges.
- Report.
- Exhibit memo form.
24. PW5 was the Investigating Officer, Police Constable Ali Noor who told the trial court that he took over the investigations of the case from his colleague, one Richard Langat.
25. The officer told the court that on 11th March, 2022, PW3 made a report to the police that there had been sporadic shootings in his area of jurisdiction. He stated that the firearm subject to this case was recovered from the Appellant.
26. The witness testified that the following day at around 11.30am the Appellant was arrested and found with 5 more bullets in his pocket. He was then taken to Kabachi Police Post and later charged.
27. The prosecution closed its case at this point and its ruling rendered on the 28th March 2023, the Hon. A.G. Munene (PM) found that a prima facie case had been established against the Appellant and he was placed on his defence.
28. The Appellant elected to give an unsworn testimony. He denied being found to be in possession of the firearm and ammunitions.
29. The defence case was closed at that stage.
30. In his judgement delivered on 28th April, 2023, the learned trial Magistrate found that the prosecution had proved both charges in counts I and II beyond reasonable doubt and proceeded to convict the Appellant on both counts.
31. After considering the Appellant’s mitigation the trial Magistrate proceeded to sentence the Appellant to 9 years imprisonment on each of the two counts. He did not specify whether the sentences were to run consecutively or concurrently.
32. All considered, the issues that I am now tasked to determine are as follows;
a. Whether the prosecution proved its case beyond reasonable doubt on the two counts.
b. Whether the sentence passed was unconstitutional, manifestly harsh and/or excessive.
33. The Appellant was charged with possession of a firearm and ammunition without a firearm certificate. Section 4 of the Penal Code defines possession as;
“(a)”be in possession of” or “have in possession’’ includes not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person;
(b)if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed taken to be in the custody and possession of each and all of them.”
34. In Daniel Dena Mwaringa & 3 others v Republic [2021] eKLR, Nyakundi J. cited the Stephen’s Digest of the Criminal Law where possession is defined as –
“A moveable thing said to be in the possession of a person when he is situated with respect to it, that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances as such that he may be presumed to intend to do so in the case of need”.
35. Further in Hussein v R [1980] KLR 139 the court of Appeal stated that,
“In this definition on possession. It does not mean that any legal title had to be proved, nor that access to the complete exclusion of all other persons to be shown, but that a possession must have such access to and physical control over the thing that he is in a possession to deal with it as an owner could to the exclusion of strangers”.
36. The definition above connotes that there is actual possession and constructive possession. The question is whether the Appellant had either of these in relation to the recovered firearm and ammunition.
37. PW1 and PW2 both testified to seeing the Appellant in the possession of the firearm. PW1 testified that he noticed a gun nozzle protruding from the Appellant’s jacket on the material date. PW2 went on to testify that later on that night, after receiving reports that his home had been invaded, he proceeded to the scene in the company of a friend, and being armed with a flashlight he was able to see the Appellant with a gun in his possession. PW2 testified that on confronting the Appellant, he managed to cut the gun’s sling from the Appellant. PW2 stated that he knew the Appellant well and that the two were relatives.
38. PW1 and PW2 both identified the firearm that was produced in court, as the same firearm that the Appellant had possessed on the material night. The Appellant herein did not have any licence for the aforementioned gun.
39. In his defence, the Appellant merely denied being found in possession of the gun. He made no further explanation and, in my view, that amounted to a mere denial.
40. The Appellant herein challenged his conviction on the ground that the trial court did not inform him of his right to choose, and be represented by an advocate and that as such, his right to a fair hearing under Article 50(2)(g) of the Constitution was violated.
41. On that, the learned Prosecution Counsel Ms. Rotich submitted that the Appellant was informed of his right to legal representation. However, it is instructive from the record of the trial court that there is nowhere the learned trial Magistrate recorded that the Appellant was informed of that right.
42. Article 50(2)(h) provide as follows:
50(2) 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.
(Underlined emphasis).
43. It is mandatorily required under the said constitutional provision that the trial court promptly informs an accused person of his right to counsel so that he makes an informed decision whether not to procure the services of an advocate or may qualify to apply for legal aid. Under Article 25 of the Constitution, the right to a fair trial is one of the fundamental rights and freedoms that may not be limited.
44. In the case of Chacha Mwita v Republic Criminal Appeal No 33 of 2019, Mrima J. observed as follows of the above right.
“Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett v Greyhound Racing Association [1968] 2 All ER 545 Lord Denning presented himself thus: -
‘It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.”
In South Africa in Fraser v ABSA Bank Limited 966/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the constitutional court had the following to say:
“Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….”
In Kenya, the Supreme Court in Petition No 5 of 2015 Republic v Karisa Chengo & 2 others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows:
“the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.”
45. Nyakundi J. in Joseph Kiema v Republic [2019] eKLR stated as follows on the right under Article 50(2)(g):
“……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It (the court record) must show that the court did take the profile of the accused person before the trial commenced……”
46. As earlier stated herein, I have perused the record and it is evident that the trial court did not inform the Appellant of his right to counsel. Failure by the court to comply with the said constitutional requirement rendered the trial a nullity. Indeed, that was the holding in Chacha Mwita (supra) and Joseph Kiema (supra) and Bernard Mwita Salima v Republic [2020] eKLR. The
47. Having found that the trial was a nullity for failure by the court to inform the Appellant of his right under Article 50(2)(g) of the Constitution. I hereby allow the appeal and proceed to quash the conviction on both counts and set aside the sentences on both counts.
48. This court is now required to determine whether a retrial should be ordered or an acquittal.
49. In the case of Nicholas Kipngetich Mutai v Republic [2020] eKLR the Court held that a retrial should be ordered only where the interest of justice so requires.
50. In the case of Ahmed Sumar v R [1964] EALR 483, the Court stated as follows as concerns the issue of retrial in criminal cases:
“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered.”
(Underlined emphasis).
51. Considering the seriousness of the offences that the Appellant was charged with, and further taking into account that the prosecution offered strong evidence and that the failure to comply with Article 50(2)(g) fell on the part of the court, it is my persuasion that the interests of justice will be best served if a retrial is held.
52. To that end, I order that the Appellant be presented before Maua Chief Magistrate’s Court on 10th February, 2025 for retrial, before a court presided over by a Magistrate other than Hon. A.G. Munene, PM.
53. In the intervening period, he will be handed over by the Kenya Prison Authorities to Mutuati Police Station, where he will be remanded awaiting his presentation before Maua Chief Magistrate’s Court.
DELIVERED (virtually), DATED & SIGNED this 6th February, 2025.
JOE M. OMIDO
JUDGE
For the Appellant: Present.
For the Respondent: Ms. Kimunya.
Court Assistants: Mr. Ngoge & Mr. Juma.