REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL APPEAL (CONSOLIDATED) NO. E046 AND E47 OF 2025
SORA BORU GALMA……………………………………...……..1 ST APPELLANT
KADIRO OSMAN………………………………………………..2 ND APPELLANT
VERSUS
REPUBLIC …………………………..….……………...................RESPONDENT
( Being an appeal against the original Conviction and sentence of the Hon Christine Wekesa, Senior Principal Magistrate delivered on 24.11.2025 in Marsabit SPMCR No E173 of 2024)
BETWEEN
REPUBLIC ………………………………………………..............PROSECUTOR
VERSUS
SORA BORU GALMA……………….…………….….……………..1 ST ACCUSED
KADIRO OSMAN,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,………..2 ND ACCUSED
MIYO QAYO QANCHO…………………………………………..3 RD ACCUSED
JUDGEMENT
A. INTRODUCTION
1. Before the trial court, the 1 st Appellant, Sora Boru Galma, together with the 2 nd Appellant Kadiro Osman Ali and one Miyo Qanchora Jirmo faced various charges under the Firearms Act 2014. On count one, the 1 st Appellant Sora Boru Galma was charged with the offence of being in possession of a firearm contrary to Section 4A(1)(a) of the Firearms Act, 2014 . The particulars were that on the 16th day of December 2024, at around 0630 hours at Manyatta Daaba in Jirime Location within Marsabit County, he was found in possession of a firearm namely AK-47 serial number 1972/P06349, in circumstances which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order, without a firearm certificate.
2. On count two, he was charged with the offence of being in possession of ammunition contrary to Section 4(1)(2)(a) as read with Section 3(a) of the Firearms Act, 2014 . The particulars were that on the 16 th day of December 2024, at around 0630 hours at Manyatta Daaba in Jirime Location within Marsabit County, he was found in possession of Thirty (30) rounds of 7.62 x 39mm special ammunition, in circumstances which raised reasonable presumption that the said ammunition was intended to be used in a manner prejudicial to public order, without a firearm certificate.
3. The 2 nd Appellant, Kadiro Osman Ali, was similarly charged on two (2) counts. On count three, he was charged with the offence of being in possession of a firearm contrary to Section 4A(1)(a) of the Firearms Act, 2014 . The particulars were that on the 16th day of December 2024, at around 0630 hours at Manyatta Daaba in Jirime Location within Marsabit County, he was found in possession of a firearm namely AK-47 serial number FM 4964, in circumstances which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order, without a firearm certificate.
4. On count four, the 2 nd Appellant was charged with the offence of being in possession of ammunition contrary to Section 4(1)(2)(a) as read with Section 3(a) of the Firearms Act, 2014 . The particulars were that on the same date and place, he was found in possession of Sixty (60) rounds of 7.62 x 39mm special ammunition, in circumstances which raised reasonable presumption that the said ammunition was intended to be used in a manner prejudicial to public order, without a firearm certificate.
5. Both Appellants denied the said charges and the matter proceeded to full trial.
B. EVIDENCE AT TRIAL
6. PW1 PC Dennis Langat, stationed at Marsabit Police Station, testified that on 16 th December 2024 at about 6.30 a.m., he was part of a police patrol team assigned to go on patrol duties within Jirime Location. Acting on intelligence information received the previous night that a person had been seen carrying a firearm and on being spotted had run towards Segel area, the team proceeded to Manyatta Daaba where they found makeshift shelters and proceeded to conduct a physical search therein.
7. PW1 stated that he first approached the topmost shelter, which he considered a vantage point for a sentry. He found one person sleeping inside, later identified as DW3. He instructed him to come out, and upon searching the bedding, he recovered an AK47 rifle with dual serial numbers CN7766/CH6534, loaded with 30 rounds of 7.62 x 39mm ammunition. He arrested DW3 and handed him over to his colleagues.
8. PW1 further testified that his colleagues searched the other shelters and recovered two more rifles. From the 2 nd Appellant (DW2), they recovered an AK47 rifle serial number FM4964, together with three magazines (two loaded with 30 rounds each and one empty), plus two magazine pouches. From the 1 st Appellant (DW1), they recovered an AK47 rifle serial number 1972/P06349, loaded with a magazine of 30 rounds of 7.62 x 39mm ammunition.
9. PW1 confirmed that inventories were prepared at the scene for each recovery, and that both he and the accused persons signed them. He produced the inventories as exhibits:
• P. Exhibit 13A for DW3 (Rifle CN7766/CH6534 and 30 rounds).
• P. Exhibit 13B for 2 nd Appellant (DW2) (Rifle FM4964, magazines, pouches, and ammunition).
• P. Exhibit 13C for 1 st Appellant (DW1) (Rifle 1972/P06349 and 30 rounds)
10. He emphasized that the arrests and recoveries were effected inside the makeshift’s structures at the manyatta, and denied that any of the accused were arrested by the roadside or while herding. He further explained that the accused persons understood the process, as he spoke to them in Swahili.
11. Under crossexamination, PW1 reiterated his earlier evidence regarding the raid on the manyatta and the recoveries made and further admitted that there were errors in the inventories regarding the names of the officers who recovered the said firearms, but maintained that the recoveries were genuine and made in the presence of the accused persons. He conceded that he had no documentary proof that the shelters belonged to the accused, but insisted that each accused was found inside the respective shelter where the firearm was recovered. He also confirmed that no local administrators were called to witness the recovery, but explained that this was not mandatory.
12. In reexamination, PW1 reiterated that only the three accused persons were present in the makeshift shelters, and that refusal by DW3 to initially come out of the said shelter was an indication that he was hiding something. He maintained that the inventories reflected the recoveries made, notwithstanding the minor clerical errors made therein.
13. PW2 PC Julius Njoroge, attached to Marsabit Police Station, testified that on 16th December 2024 he was part of the patrol team lead by PW1. He confirmed that the team had received information the previous night that firearms were being kept at a manyatta within Segel area, and they proceeded to Manyatta Daaba where they cordoned the scene and conducted searches. Three AK47 rifles were recovered in total, together with magazines and ammunition. He explained that although he did not personally recover the firearms, he witnessed his colleagues PW1 and PW3 coming out of the makeshift shelters with the recovered rifles. He further confirmed that inventories were prepared at the scene, explained to the suspects in Swahili and signed by the officers and the accused persons.
14. During cross examination, PW2 admitted that during cordoning, he faced outward and did not witness the actual searches inside the respective shelters. He saw PW1 and PW3 emerge from different shelter’s carrying the recovered firearms and acknowledged that some of the recovered firearms were in possession of ladies. He further maintained that the inventory was correctly filled by PW1 and that at the time of signing, each accused stood beside the firearm attributed to him. He conceded that he did not witness the accused persons physically holding the firearms, but only saw them being pulled out of the shelters.
15. On reexamination, he reiterated that although he did not personally witness the searches inside the shelters, he saw PW1 and PW3 emerge with rifles and confirmed that inventories were prepared and signed. He maintained that between PW1 and PW3, each recovered a firearm, and that the recoveries were genuine.
16. PW3 PC Alphax Anyona, based at Marsabit Police Station, testified that on 16th December 2024 at about 6.00 a.m., he was part of the patrol team led by PW1, that raided Manyatta Daaba seeking to recover firearms being kept therein. Upon arrival, the team searched the last manyatta, which had several houses. In one of the shelters, he lifted bedding and found a sack. Inside the sack, he recovered an AK47 rifle serial number FM4964, together with three pouches and 60 rounds of ammunition. He identified the DW2 as the person found within that shelter. He confirmed that an inventory was prepared at the scene, which he signed.
17. During cross examination, PW3 admitted that the tipoff was received on 15th December 2024. He stated that upon arrival, DW2 was found outside relieving himself. He spoke to him in Swahili, asked who he was, and conducted the search which led to recovery of the firearm. He acknowledged that according to the inventory, PW1 was recorded as the officer who recovered the firearm, and that he signed the inventory as a witness. He conceded that there were inconsistencies between his oral testimony and the inventory, but maintained that the firearm was recovered from the shelter associated with DW2. He further stated that when the accused persons saw the police vehicle, they attempted to run away, but the officers secured the scene. He also noted that communication was limited as none of the officers understood Borana language. However, some of the accused persons knew and understood Swahili, including the DW1.
18. In ReExamination PW3 confirmed that the inventory recorded PW1 as the officer who recovered the firearm, noting that he was the one leading the team. He added though they found DW2 outside relieving himself, he admitted to owning the house where the 2 nd firearm was recovered.
19. PW4 Chief Inspector Alfred Mbakini Kanyi, a firearm examiner attached to the DCI Headquarters Forensic Ballistics Section, testified that his duties include identification and examination of firearms, ammunition and their component parts, and linking them to crimes within the Republic. He outlined his qualifications and stated that on 20 th December 2024, he received various exhibits from PW5 for examination. These included:
• Three AK47 rifles: serial numbers 1972/P06349 (P. Exhibit A), FM4964 (P. Exhibit B), and CH6534 (P. Exhibit C).
• Five magazines (P. Exhibits D–H).
• 120 rounds of ammunition (marked D1–D30, E1–E30, F1–F30, G1–G30).
20. His task was to establish whether the rifles were firearms within the meaning of the law, whether the ammunition were live and if so what caliber of firearms can be used with them, to ascertain if the magazines could be used to fire ammunition and which type and whether the said firearms had been used to commit a crime anywhere else within the Republic of Kenya.
21. PW4 testified that all three rifles were AK47s chambered for 7.62 × 39 mm rounds, manufactured in Russia, Romania, and China respectively. Each was in good mechanical condition and capable of firing. He testfired three rounds at random, marking the cartridges TC1, TC2, and TC3 for comparison. He confirmed that the 120 rounds were live ammunition of calibre 7.62 × 39 mm, and that the magazines were compatible with the rifles.
22. He formed the opinion that the rifles and ammunition were firearms and ammunition as defined under Section 114 of the Firearms Act. Comparative microscopic analysis revealed no evidence that the rifles had been used to commit any crime within Kenya.PW4 produced his report dated 7 th January 2025 as P. Exhibit 16, together with the exhibit memo marked P. Exhibit 17. He also produced the testfired cartridges as exhibits (P. Exhibit 3, 8, & 12 respectively).
23. On Cross Examination, he stated that it was not within his responsibility to dust firearms for fingerprints. He confirmed that no fingerprints were taken from the exhibits (firearms) examined.
24. PW5 Corporal Amos Ndonyi, attached to DCI Headquarters and formerly at DCI Marsabit Central, testified that he was the investigating officer in this case. He recalled that on 15 th December 2024, a complaint was made vide OB No. 12/16/12/2024 that some suspects were in possession of firearm. Following this, officers from Marsabit Police Station, conducted a raid at the said Manyatta, and arrested the appellants and recovered three firearms and 120 rounds of ammunition.
25. PW5 stated that the arresting officers prepared an inventory, which was witnessed and signed by the suspects. He took over the case, received the recovered firearms and ammunition, and recorded the inventory. The suspects were placed in custody and later charged.
26. He testified that according to the inventory:
• An AK47 rifle serial number 1972/P06349 (PMFI 9) was recovered from Sora Boru Galma and produced as P. Exhibit 9.
• An AK47 rifle serial number FM4964 (PMFI 4) was recovered from Kadilo Osman Ali and produced as P. Exhibit 4.
• An AK47 rifle serial number CH6534 (PMFI 1) was recovered from DW3 and produced as P. Exhibit 1.
27. PW5 further confirmed that each gun had a magazine with 30 rounds of ammunition, plus extra magazines too were recovered. He produced the same into evidence as follows:
• 27 rounds of ammunition found in the 1 st magazine marked as P. Exhibit 2.
• 30 rounds of ammunition found in the 2 nd magazine, marked as P. Exhibit 11.
• 57 rounds of ammunition (after 3 were test ‑ fired) marked as P. Exhibit 7.
• Two magazines not attached to rifles found in the pouches, marked as P. Exhibit 5(a) & (b).
• Two pouches holding magazines, marked as P. Exhibit 4(a) & (b).
• Three empty magazines marked as P. Exhibit 6.
• One magazine with 30 rounds of ammunition marked as P. Exhibit 10.
28. He confirmed that he prepared an exhibit memo dated 19 th December 2024, which was forwarded to the ballistic expert and produced it as P. Exhibit 15. He stated that upon interrogating the suspects, he established that none of them had firearm licenses and identified the accused persons as those who had been arrested while in possession of the said firearms and ammunition.
29. During cross examination, PW5 confirmed that the arresting officers acted on a tipoff in conducting the said raid that led to the recovery of the rifles and ammunition and had prepared an inventory signed by the suspects, though he did not know the circumstances under which the signatures were obtained, since he was not present at the scene and relied on the information and inventories provided by the arresting officers.
30. He referred to the inventories, which he confirmed indicated that:
• Rifle CN7766 with 30 rounds was recovered from DW3, it signed with his thumbprint, and recorded as recovered by PW1.
• Rifle FM4964 was recovered from DW2, signed with his thumbprint, and recorded as recovered by PW1.
• Rifle 1972/P06349 was recovered from DW1, also recorded as recovered by PW1.
31. PW5 reiterated that once the suspects were in custody, he interrogated them and confirmed that all the suspects knew and understood Swahili, though not fluently. He did not record their statements but forwarded the file to the prosecution for action. He also admitted that he did not visit the scene and did not investigate whether the accused persons owned the land or structures where the firearms were recovered.
32. In re-examination, PW5 explained that in police operations, it is proper for the team leader to indicate recoveries, and therefore PW1 recording himself as the recovering officer was in order. He reiterated that the rifles were recovered in makeshift structures where the suspects were found, and clarified that although he submitted ammunition bundles D1–D30 to the ballistic expert, none from that set was testfired, as the examining officer (PW4) had randomly picked other ammunition and confirmed that they were live rounds of ammunition.
33. At this point the prosecution closed their case and all the accused persons were placed on their defence.
C. DEFENSE CASE
34. DW1 Sora Galma testified that he is a resident of Manyatta Ginda and owned a few cows which he herds. He understood the charge faced of being found in possession of a firearm but denied the allegation. He recalled that on 16 th December 2024, he woke up in the morning and took his cows for grazing at about 6.00 a.m. together with his neighbour, Kana Mega. They merged their animals and went to graze at a place called Haro Bota. At about 7.00 a.m., Kana returned home to take tea, leaving him alone with the animals.
35. DW1 stated that while he was herding beside the road, a police vehicle arrived, parked near him, and the officers arrested him. He was placed inside the vehicle, which carried many civilians, and taken to the police station. He said he did not understand the Swahili spoken by the officers and later his brother came to the station to inquire about his arrest and that is when he learnt of the trumped-up charges.
36. He explained that although many people were arrested, only three of them remained in custody while others were released. He denied ever being in the makeshift shelter where the firearms were allegedly recovered and insisted that on the previous night he had slept at his own house with his wife and children, He further denied ever possessing or touching a firearm in his life and stated that he did not know the other accused persons until he saw them in court. He maintained that he was innocent and insisted that he had not committed any offence.
37. During cross examination, DW1 reiterated that on 16 th December 2024, he had gone to herd cows with two others and denied being in the makeshift shelter where the police claimed to have recovered firearms. He reiterated that he was arrested by the roadside and taken away in one of three vehicles used in the operation. He further denied signing any inventory, stating that the signature attributed to him was not his. He confirmed that he spent the night of 15 th December at his house and that a village elder from Manyatta Ginda could corroborate this. He also maintained that he did not know the other accused persons before court and urged the court to acquit him of the charges faced.
38. DW2 Kadiro Osman testified that he was a herder of goats and resides at Boru Wako in Qampicha. He recalled that on 16 th December 2024, while taking goats to graze, a police vehicle arrived and stopped him before he reached his destination. He was arrested by the officers, though he did not know the reason. He maintained that since coming to Marsabit, he had never slept outside Qampicha, and further denied being in possession of any firearm, insisting that he only saw the gun in court. He explained that even if chased by wild animals, he would not know how to use a gun. He further stated that he did not know the other accused persons.
39. On Cross Examination, DW2 denied that the signature on the inventory was his and affirmed that he did not know whether any guns were found at Manyatta jirme. He reiterated his earlier evidence that he was arrested while going to herd animals and was taken to the police station. He denied entering any house and/or being found asleep in any shelter within the Manyatta Daaba. He maintained that he had never slept outside their Manyatta- Boru Wako in Qampicha.
40. DW3, Guyato Qanchora Jirmo, testified that he is a student at Dakabaricha High School. He recalled that on 16 th December 2024, he woke up at home around 4:00 a.m. to study until 5:30 a.m., after which he went to pray at the nearest mosque. As an athlete specializing in short and long races, he went for a morning run along Robota Road at around 6:00 a.m. for about 20 minutes. While running alone, a police vehicle stopped in front of him, and officers arrested him and put him inside without informing him why he was being apprehended.
41. He was then taken to the police station in a vehicle containing approximately 10 people, including civilians and police officer and was initially not informed of the reason of arrest. When his parents came to inquire about the reason of his arrest, they were informed that he had been found in possession of a firearm, which charge was wrongly framed against him as no weapon or illegal items were recovered from him during the search / arrest. He denied police allegations that he was found sleeping in a certain structure with the Manyatta, stating that he slept alone in his room at his parents’ home and has never spent a night outside. He added that his parents do not own any animals and that he does not herd animals.
42. He reiterated his claim that he was not found in possession of a firearm, emphasizing that he did not own one, did not know how to use one, and that his father also did not own one either. He also he did not know the 1 st and 2 nd accused persons prior to meeting them in court, as they are not from their manyatta. He further denied signing the inventory, and concluded his evidence by stating that ongoing court appearances had affected his education. He maintained his innocence, and prayed for the court to acquit him.
43. During cross-examination, he reiterated that he was exercising along Robota Road, which was not near Manyatta Dacha, when police officers claimed, he was attempting to flee before arresting him. He reaffirmed that his parents were present to testify that he had slept at home that night and denied being the person found at Manyatta Baba or Manyatta Daaba after going to relieve himself, stating that he does not know where Manyatta Daaba is. He maintained that he was thrown into the police vehicle without explanation, and only learned of his charges later in court. In re-examination, he clarified that the two police officers who were inside the vehicle during his arrest were not the ones who testified in court.
44. DW4, Barako Boru, testified that he is a resident of Boru Galma and works as a herder/ farmer. He knew the 1 st Appellant as they were neighbors within the manyatta. On 16 th December 2025, he received information from DW1’s wife that her husband had been arrested while herding animals. The wife had been informed by one Kaha Mega, who had gone to relieve the accused from herding duties.
45. He explained that the 1 st Appellant normally would leave home to herd his animals and returns in the evening, and if he had activities in the manyatta, he would come back to sort out the same before resuming his routine. DW4 maintained that the charge of possession of firearm and ammunition against the 1 st Appellant was fabricated, as he had never seen the accused with any gun or ammunition. He described the 1 st Appellant as a lawabiding person who routinely herded his animals and returned home in the evening, and insisted that he was not someone to involve himself in criminal activities.
46. On crossexamination, DW4 clarified that he was the village elder of Boru Galma manyatta, not Mayatta Daaba. He reiterated that on 15 th December 2025, he had seen the accused with his animals at Boru Galma. He confirmed that the accused never told him he had been arrested with a gun.
47. DW5, Halake Jirmo, testified that he resides at Milima Tatu village, was a farmer and a village elder within the said village. He stated that DW3, was his nephew, being the son of his brother and were neighbours. He recalled that on 16 th December 2024, when DW3 was arrested, he was at the manyatta while DW3’s father had gone to school to attend to pupils doing tuition, being the head teacher at Manyatta Jillo school. On that material day, DW3 did not report to school, and his father on noticing the same, called DW5 and requested him to go and look him. He went to their house, but he did not find him, only to later learn that DW3 had been arrested in a police raid. He emphasized that DW3 is a student at Dakabaricha Primary School and did not own any firearm.
48. In crossexamination, DW5 confirmed that on 15 th December 2024, he saw DW3 at his house, where he had studied with his daughter. He reiterated that they resided at Manyatta Shone Liban within Milima tatu and that his nephew (DW3) was arrested while jogging around Manyatta Galba
49. DW6, Antonella Ellema Guyu, testified that she resides at Milima Tatu and confirmed that she was mother to DW3. She explained that on 16 th December 2024, DW3 woke up at around 4.00 a.m. to study, as was his routine, before heading to the mosque for the 6.00 a.m prayers. After prayers, he would go for his morning run along the road to Aldaya, as he was an athlete and returned home around 7.00 a.m., but on the material day he did not return on time.
50. By 9.00 a.m., she became concerned and called his father, who had gone to school and he advised her to ask neighbours if they had seen him and he also made call, including to DW5. They later heard rumours that people had been arrested and taken away in police vehicles. Together, they went to the police station, where they found DW3. When asked, DW3 said he did not know why he had been arrested, but later in court they were charged of being in possession of firearm and ammunition. She added that on 15 th December 2024 DW3 had been at the home of DW5, studying with his daughter in Grade 8, before returning home to sleep. She had never seen her son with a gun and was shocked at the charges leveled against him.
51. She was also affirmed that she was not acquainted with the other co accused as they were not from their Manyatta at Millima Tatu, and that Manyatta Daaba, where the alleged guns were recovered was far away from their Manyatta. There was also no link between the recovered guns with her child (DW3) and she urged the court to acquit him of the charges faced.
52. The learned trial magistrate considered all the evidence adduced and found the Appellants each guilty of the offence of being in possession of a firearm without a firearm certificate and being in possession of ammunition without a firearm certificate and proceeded to convict all of them under Section 215 of the criminal procedure code . After mitigation, the trial court sentenced the Appellants to serve seven years imprisonment each.
D. THE APPEAL
53. Being wholly dissatisfied with the said conviction and sentence, the 1 st and 2 nd Appellants file different Appeals, but the said files were consolidated vide this court’s order dated 6 th May 2026. The 1 st Appellant in his petition of appeal and raised the following grounds of appeal;
(a) THAT the learned trial magistrate erred in law and fact by failing to determine that the prosecution had not discharged its burden of proof, as no direct or circumstantial evidence was offered to link the appellant to the offence beyond reasonable doubt.
(b) THAT the learned trial magistrate erred in law and fact by failing to determine that none of the prosecution witnesses claimed to have recovered firearm AK47 serial number 1972/P06349 with 30 rounds of ammunition from the appellant herein.
(c) THAT the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution testimony, both oral and documentary, including the three inventory exhibits, was fundamentally contradictory, rendering any conviction unsafe.
(d) THAT the learned trial magistrate erred in law by failing to establish that legal possession of the firearm had not been proved beyond reasonable doubt, as the appellant’s presence and/or control over the alleged crime scene was not established to the required legal standard.
(e) THAT the learned trial magistrate erred in law and fact by failing to consider the numerous inconsistencies and contradictions in the prosecution evidence, thereby making the conviction and sentence unsafe.
(f) THAT the learned trial magistrate erred in law and fact by failing to consider that the defence case was uncontroverted and unshaken, and had raised sufficient reasonable doubt against the prosecution’s case.
(g) THAT the sentence imposed upon the appellant was harsh, and the trial court failed to consider mitigation and the need for a presentence report, particularly given the lives directly dependent on the appellant.
54. Additionally, the 2 nd Appellant filed his petition of appeal and raised the following grounds;
a) THAT the learned trial magistrate erred in law by determining that the prosecution had proved its case beyond reasonable doubt, whereas the standard of proof required in criminal law was not met.
b) THAT the learned trial magistrate erred in law and fact by failing to consider the defence and mitigation tendered by the appellant.
c) THAT the learned trial magistrate erred in law and fact by passing a harsh and excessive sentence without regard to the circumstances of the case.
d) THAT the learned trial magistrate failed to consider material discrepancies and inconsistencies in the prosecution evidence before arriving at judgment.
e) THAT the learned trial magistrate failed to properly evaluate the evidence and determine that the case against the appellant did not meet the required legal standard .
55. Both Appellants prayed that their appeals be allowed, the conviction and sentence set aside, and that they be set at liberty. The
E. THE APPELLANTS SUBMISSIONS
56. In challenging their conviction and sentence, the Appellants submitted that the trial court erred in both law and fact by failing to properly evaluate the evidence, reaching a conclusion unsupported by the evidence on record. Through their counsel, they argued that the prosecution failed to establish the essential elements of physical or constructive possession of the firearms and
[...truncated]
IN THE HIGH COURT OF KENYA AT MARSABIT
CRIMINAL APPEAL (CONSOLIDATED) NO. E046 AND E47 OF 2025
SORA BORU GALMA……………………………………...……..1 ST APPELLANT
KADIRO OSMAN………………………………………………..2 ND APPELLANT
VERSUS
REPUBLIC …………………………..….……………...................RESPONDENT
( Being an appeal against the original Conviction and sentence of the Hon Christine Wekesa, Senior Principal Magistrate delivered on 24.11.2025 in Marsabit SPMCR No E173 of 2024)
BETWEEN
REPUBLIC ………………………………………………..............PROSECUTOR
VERSUS
SORA BORU GALMA……………….…………….….……………..1 ST ACCUSED
KADIRO OSMAN,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,………..2 ND ACCUSED
MIYO QAYO QANCHO…………………………………………..3 RD ACCUSED
JUDGEMENT
A. INTRODUCTION
1. Before the trial court, the 1 st Appellant, Sora Boru Galma, together with the 2 nd Appellant Kadiro Osman Ali and one Miyo Qanchora Jirmo faced various charges under the Firearms Act 2014. On count one, the 1 st Appellant Sora Boru Galma was charged with the offence of being in possession of a firearm contrary to Section 4A(1)(a) of the Firearms Act, 2014 . The particulars were that on the 16th day of December 2024, at around 0630 hours at Manyatta Daaba in Jirime Location within Marsabit County, he was found in possession of a firearm namely AK-47 serial number 1972/P06349, in circumstances which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order, without a firearm certificate.
2. On count two, he was charged with the offence of being in possession of ammunition contrary to Section 4(1)(2)(a) as read with Section 3(a) of the Firearms Act, 2014 . The particulars were that on the 16 th day of December 2024, at around 0630 hours at Manyatta Daaba in Jirime Location within Marsabit County, he was found in possession of Thirty (30) rounds of 7.62 x 39mm special ammunition, in circumstances which raised reasonable presumption that the said ammunition was intended to be used in a manner prejudicial to public order, without a firearm certificate.
3. The 2 nd Appellant, Kadiro Osman Ali, was similarly charged on two (2) counts. On count three, he was charged with the offence of being in possession of a firearm contrary to Section 4A(1)(a) of the Firearms Act, 2014 . The particulars were that on the 16th day of December 2024, at around 0630 hours at Manyatta Daaba in Jirime Location within Marsabit County, he was found in possession of a firearm namely AK-47 serial number FM 4964, in circumstances which raised reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order, without a firearm certificate.
4. On count four, the 2 nd Appellant was charged with the offence of being in possession of ammunition contrary to Section 4(1)(2)(a) as read with Section 3(a) of the Firearms Act, 2014 . The particulars were that on the same date and place, he was found in possession of Sixty (60) rounds of 7.62 x 39mm special ammunition, in circumstances which raised reasonable presumption that the said ammunition was intended to be used in a manner prejudicial to public order, without a firearm certificate.
5. Both Appellants denied the said charges and the matter proceeded to full trial.
B. EVIDENCE AT TRIAL
6. PW1 PC Dennis Langat, stationed at Marsabit Police Station, testified that on 16 th December 2024 at about 6.30 a.m., he was part of a police patrol team assigned to go on patrol duties within Jirime Location. Acting on intelligence information received the previous night that a person had been seen carrying a firearm and on being spotted had run towards Segel area, the team proceeded to Manyatta Daaba where they found makeshift shelters and proceeded to conduct a physical search therein.
7. PW1 stated that he first approached the topmost shelter, which he considered a vantage point for a sentry. He found one person sleeping inside, later identified as DW3. He instructed him to come out, and upon searching the bedding, he recovered an AK47 rifle with dual serial numbers CN7766/CH6534, loaded with 30 rounds of 7.62 x 39mm ammunition. He arrested DW3 and handed him over to his colleagues.
8. PW1 further testified that his colleagues searched the other shelters and recovered two more rifles. From the 2 nd Appellant (DW2), they recovered an AK47 rifle serial number FM4964, together with three magazines (two loaded with 30 rounds each and one empty), plus two magazine pouches. From the 1 st Appellant (DW1), they recovered an AK47 rifle serial number 1972/P06349, loaded with a magazine of 30 rounds of 7.62 x 39mm ammunition.
9. PW1 confirmed that inventories were prepared at the scene for each recovery, and that both he and the accused persons signed them. He produced the inventories as exhibits:
• P. Exhibit 13A for DW3 (Rifle CN7766/CH6534 and 30 rounds).
• P. Exhibit 13B for 2 nd Appellant (DW2) (Rifle FM4964, magazines, pouches, and ammunition).
• P. Exhibit 13C for 1 st Appellant (DW1) (Rifle 1972/P06349 and 30 rounds)
10. He emphasized that the arrests and recoveries were effected inside the makeshift’s structures at the manyatta, and denied that any of the accused were arrested by the roadside or while herding. He further explained that the accused persons understood the process, as he spoke to them in Swahili.
11. Under crossexamination, PW1 reiterated his earlier evidence regarding the raid on the manyatta and the recoveries made and further admitted that there were errors in the inventories regarding the names of the officers who recovered the said firearms, but maintained that the recoveries were genuine and made in the presence of the accused persons. He conceded that he had no documentary proof that the shelters belonged to the accused, but insisted that each accused was found inside the respective shelter where the firearm was recovered. He also confirmed that no local administrators were called to witness the recovery, but explained that this was not mandatory.
12. In reexamination, PW1 reiterated that only the three accused persons were present in the makeshift shelters, and that refusal by DW3 to initially come out of the said shelter was an indication that he was hiding something. He maintained that the inventories reflected the recoveries made, notwithstanding the minor clerical errors made therein.
13. PW2 PC Julius Njoroge, attached to Marsabit Police Station, testified that on 16th December 2024 he was part of the patrol team lead by PW1. He confirmed that the team had received information the previous night that firearms were being kept at a manyatta within Segel area, and they proceeded to Manyatta Daaba where they cordoned the scene and conducted searches. Three AK47 rifles were recovered in total, together with magazines and ammunition. He explained that although he did not personally recover the firearms, he witnessed his colleagues PW1 and PW3 coming out of the makeshift shelters with the recovered rifles. He further confirmed that inventories were prepared at the scene, explained to the suspects in Swahili and signed by the officers and the accused persons.
14. During cross examination, PW2 admitted that during cordoning, he faced outward and did not witness the actual searches inside the respective shelters. He saw PW1 and PW3 emerge from different shelter’s carrying the recovered firearms and acknowledged that some of the recovered firearms were in possession of ladies. He further maintained that the inventory was correctly filled by PW1 and that at the time of signing, each accused stood beside the firearm attributed to him. He conceded that he did not witness the accused persons physically holding the firearms, but only saw them being pulled out of the shelters.
15. On reexamination, he reiterated that although he did not personally witness the searches inside the shelters, he saw PW1 and PW3 emerge with rifles and confirmed that inventories were prepared and signed. He maintained that between PW1 and PW3, each recovered a firearm, and that the recoveries were genuine.
16. PW3 PC Alphax Anyona, based at Marsabit Police Station, testified that on 16th December 2024 at about 6.00 a.m., he was part of the patrol team led by PW1, that raided Manyatta Daaba seeking to recover firearms being kept therein. Upon arrival, the team searched the last manyatta, which had several houses. In one of the shelters, he lifted bedding and found a sack. Inside the sack, he recovered an AK47 rifle serial number FM4964, together with three pouches and 60 rounds of ammunition. He identified the DW2 as the person found within that shelter. He confirmed that an inventory was prepared at the scene, which he signed.
17. During cross examination, PW3 admitted that the tipoff was received on 15th December 2024. He stated that upon arrival, DW2 was found outside relieving himself. He spoke to him in Swahili, asked who he was, and conducted the search which led to recovery of the firearm. He acknowledged that according to the inventory, PW1 was recorded as the officer who recovered the firearm, and that he signed the inventory as a witness. He conceded that there were inconsistencies between his oral testimony and the inventory, but maintained that the firearm was recovered from the shelter associated with DW2. He further stated that when the accused persons saw the police vehicle, they attempted to run away, but the officers secured the scene. He also noted that communication was limited as none of the officers understood Borana language. However, some of the accused persons knew and understood Swahili, including the DW1.
18. In ReExamination PW3 confirmed that the inventory recorded PW1 as the officer who recovered the firearm, noting that he was the one leading the team. He added though they found DW2 outside relieving himself, he admitted to owning the house where the 2 nd firearm was recovered.
19. PW4 Chief Inspector Alfred Mbakini Kanyi, a firearm examiner attached to the DCI Headquarters Forensic Ballistics Section, testified that his duties include identification and examination of firearms, ammunition and their component parts, and linking them to crimes within the Republic. He outlined his qualifications and stated that on 20 th December 2024, he received various exhibits from PW5 for examination. These included:
• Three AK47 rifles: serial numbers 1972/P06349 (P. Exhibit A), FM4964 (P. Exhibit B), and CH6534 (P. Exhibit C).
• Five magazines (P. Exhibits D–H).
• 120 rounds of ammunition (marked D1–D30, E1–E30, F1–F30, G1–G30).
20. His task was to establish whether the rifles were firearms within the meaning of the law, whether the ammunition were live and if so what caliber of firearms can be used with them, to ascertain if the magazines could be used to fire ammunition and which type and whether the said firearms had been used to commit a crime anywhere else within the Republic of Kenya.
21. PW4 testified that all three rifles were AK47s chambered for 7.62 × 39 mm rounds, manufactured in Russia, Romania, and China respectively. Each was in good mechanical condition and capable of firing. He testfired three rounds at random, marking the cartridges TC1, TC2, and TC3 for comparison. He confirmed that the 120 rounds were live ammunition of calibre 7.62 × 39 mm, and that the magazines were compatible with the rifles.
22. He formed the opinion that the rifles and ammunition were firearms and ammunition as defined under Section 114 of the Firearms Act. Comparative microscopic analysis revealed no evidence that the rifles had been used to commit any crime within Kenya.PW4 produced his report dated 7 th January 2025 as P. Exhibit 16, together with the exhibit memo marked P. Exhibit 17. He also produced the testfired cartridges as exhibits (P. Exhibit 3, 8, & 12 respectively).
23. On Cross Examination, he stated that it was not within his responsibility to dust firearms for fingerprints. He confirmed that no fingerprints were taken from the exhibits (firearms) examined.
24. PW5 Corporal Amos Ndonyi, attached to DCI Headquarters and formerly at DCI Marsabit Central, testified that he was the investigating officer in this case. He recalled that on 15 th December 2024, a complaint was made vide OB No. 12/16/12/2024 that some suspects were in possession of firearm. Following this, officers from Marsabit Police Station, conducted a raid at the said Manyatta, and arrested the appellants and recovered three firearms and 120 rounds of ammunition.
25. PW5 stated that the arresting officers prepared an inventory, which was witnessed and signed by the suspects. He took over the case, received the recovered firearms and ammunition, and recorded the inventory. The suspects were placed in custody and later charged.
26. He testified that according to the inventory:
• An AK47 rifle serial number 1972/P06349 (PMFI 9) was recovered from Sora Boru Galma and produced as P. Exhibit 9.
• An AK47 rifle serial number FM4964 (PMFI 4) was recovered from Kadilo Osman Ali and produced as P. Exhibit 4.
• An AK47 rifle serial number CH6534 (PMFI 1) was recovered from DW3 and produced as P. Exhibit 1.
27. PW5 further confirmed that each gun had a magazine with 30 rounds of ammunition, plus extra magazines too were recovered. He produced the same into evidence as follows:
• 27 rounds of ammunition found in the 1 st magazine marked as P. Exhibit 2.
• 30 rounds of ammunition found in the 2 nd magazine, marked as P. Exhibit 11.
• 57 rounds of ammunition (after 3 were test ‑ fired) marked as P. Exhibit 7.
• Two magazines not attached to rifles found in the pouches, marked as P. Exhibit 5(a) & (b).
• Two pouches holding magazines, marked as P. Exhibit 4(a) & (b).
• Three empty magazines marked as P. Exhibit 6.
• One magazine with 30 rounds of ammunition marked as P. Exhibit 10.
28. He confirmed that he prepared an exhibit memo dated 19 th December 2024, which was forwarded to the ballistic expert and produced it as P. Exhibit 15. He stated that upon interrogating the suspects, he established that none of them had firearm licenses and identified the accused persons as those who had been arrested while in possession of the said firearms and ammunition.
29. During cross examination, PW5 confirmed that the arresting officers acted on a tipoff in conducting the said raid that led to the recovery of the rifles and ammunition and had prepared an inventory signed by the suspects, though he did not know the circumstances under which the signatures were obtained, since he was not present at the scene and relied on the information and inventories provided by the arresting officers.
30. He referred to the inventories, which he confirmed indicated that:
• Rifle CN7766 with 30 rounds was recovered from DW3, it signed with his thumbprint, and recorded as recovered by PW1.
• Rifle FM4964 was recovered from DW2, signed with his thumbprint, and recorded as recovered by PW1.
• Rifle 1972/P06349 was recovered from DW1, also recorded as recovered by PW1.
31. PW5 reiterated that once the suspects were in custody, he interrogated them and confirmed that all the suspects knew and understood Swahili, though not fluently. He did not record their statements but forwarded the file to the prosecution for action. He also admitted that he did not visit the scene and did not investigate whether the accused persons owned the land or structures where the firearms were recovered.
32. In re-examination, PW5 explained that in police operations, it is proper for the team leader to indicate recoveries, and therefore PW1 recording himself as the recovering officer was in order. He reiterated that the rifles were recovered in makeshift structures where the suspects were found, and clarified that although he submitted ammunition bundles D1–D30 to the ballistic expert, none from that set was testfired, as the examining officer (PW4) had randomly picked other ammunition and confirmed that they were live rounds of ammunition.
33. At this point the prosecution closed their case and all the accused persons were placed on their defence.
C. DEFENSE CASE
34. DW1 Sora Galma testified that he is a resident of Manyatta Ginda and owned a few cows which he herds. He understood the charge faced of being found in possession of a firearm but denied the allegation. He recalled that on 16 th December 2024, he woke up in the morning and took his cows for grazing at about 6.00 a.m. together with his neighbour, Kana Mega. They merged their animals and went to graze at a place called Haro Bota. At about 7.00 a.m., Kana returned home to take tea, leaving him alone with the animals.
35. DW1 stated that while he was herding beside the road, a police vehicle arrived, parked near him, and the officers arrested him. He was placed inside the vehicle, which carried many civilians, and taken to the police station. He said he did not understand the Swahili spoken by the officers and later his brother came to the station to inquire about his arrest and that is when he learnt of the trumped-up charges.
36. He explained that although many people were arrested, only three of them remained in custody while others were released. He denied ever being in the makeshift shelter where the firearms were allegedly recovered and insisted that on the previous night he had slept at his own house with his wife and children, He further denied ever possessing or touching a firearm in his life and stated that he did not know the other accused persons until he saw them in court. He maintained that he was innocent and insisted that he had not committed any offence.
37. During cross examination, DW1 reiterated that on 16 th December 2024, he had gone to herd cows with two others and denied being in the makeshift shelter where the police claimed to have recovered firearms. He reiterated that he was arrested by the roadside and taken away in one of three vehicles used in the operation. He further denied signing any inventory, stating that the signature attributed to him was not his. He confirmed that he spent the night of 15 th December at his house and that a village elder from Manyatta Ginda could corroborate this. He also maintained that he did not know the other accused persons before court and urged the court to acquit him of the charges faced.
38. DW2 Kadiro Osman testified that he was a herder of goats and resides at Boru Wako in Qampicha. He recalled that on 16 th December 2024, while taking goats to graze, a police vehicle arrived and stopped him before he reached his destination. He was arrested by the officers, though he did not know the reason. He maintained that since coming to Marsabit, he had never slept outside Qampicha, and further denied being in possession of any firearm, insisting that he only saw the gun in court. He explained that even if chased by wild animals, he would not know how to use a gun. He further stated that he did not know the other accused persons.
39. On Cross Examination, DW2 denied that the signature on the inventory was his and affirmed that he did not know whether any guns were found at Manyatta jirme. He reiterated his earlier evidence that he was arrested while going to herd animals and was taken to the police station. He denied entering any house and/or being found asleep in any shelter within the Manyatta Daaba. He maintained that he had never slept outside their Manyatta- Boru Wako in Qampicha.
40. DW3, Guyato Qanchora Jirmo, testified that he is a student at Dakabaricha High School. He recalled that on 16 th December 2024, he woke up at home around 4:00 a.m. to study until 5:30 a.m., after which he went to pray at the nearest mosque. As an athlete specializing in short and long races, he went for a morning run along Robota Road at around 6:00 a.m. for about 20 minutes. While running alone, a police vehicle stopped in front of him, and officers arrested him and put him inside without informing him why he was being apprehended.
41. He was then taken to the police station in a vehicle containing approximately 10 people, including civilians and police officer and was initially not informed of the reason of arrest. When his parents came to inquire about the reason of his arrest, they were informed that he had been found in possession of a firearm, which charge was wrongly framed against him as no weapon or illegal items were recovered from him during the search / arrest. He denied police allegations that he was found sleeping in a certain structure with the Manyatta, stating that he slept alone in his room at his parents’ home and has never spent a night outside. He added that his parents do not own any animals and that he does not herd animals.
42. He reiterated his claim that he was not found in possession of a firearm, emphasizing that he did not own one, did not know how to use one, and that his father also did not own one either. He also he did not know the 1 st and 2 nd accused persons prior to meeting them in court, as they are not from their manyatta. He further denied signing the inventory, and concluded his evidence by stating that ongoing court appearances had affected his education. He maintained his innocence, and prayed for the court to acquit him.
43. During cross-examination, he reiterated that he was exercising along Robota Road, which was not near Manyatta Dacha, when police officers claimed, he was attempting to flee before arresting him. He reaffirmed that his parents were present to testify that he had slept at home that night and denied being the person found at Manyatta Baba or Manyatta Daaba after going to relieve himself, stating that he does not know where Manyatta Daaba is. He maintained that he was thrown into the police vehicle without explanation, and only learned of his charges later in court. In re-examination, he clarified that the two police officers who were inside the vehicle during his arrest were not the ones who testified in court.
44. DW4, Barako Boru, testified that he is a resident of Boru Galma and works as a herder/ farmer. He knew the 1 st Appellant as they were neighbors within the manyatta. On 16 th December 2025, he received information from DW1’s wife that her husband had been arrested while herding animals. The wife had been informed by one Kaha Mega, who had gone to relieve the accused from herding duties.
45. He explained that the 1 st Appellant normally would leave home to herd his animals and returns in the evening, and if he had activities in the manyatta, he would come back to sort out the same before resuming his routine. DW4 maintained that the charge of possession of firearm and ammunition against the 1 st Appellant was fabricated, as he had never seen the accused with any gun or ammunition. He described the 1 st Appellant as a lawabiding person who routinely herded his animals and returned home in the evening, and insisted that he was not someone to involve himself in criminal activities.
46. On crossexamination, DW4 clarified that he was the village elder of Boru Galma manyatta, not Mayatta Daaba. He reiterated that on 15 th December 2025, he had seen the accused with his animals at Boru Galma. He confirmed that the accused never told him he had been arrested with a gun.
47. DW5, Halake Jirmo, testified that he resides at Milima Tatu village, was a farmer and a village elder within the said village. He stated that DW3, was his nephew, being the son of his brother and were neighbours. He recalled that on 16 th December 2024, when DW3 was arrested, he was at the manyatta while DW3’s father had gone to school to attend to pupils doing tuition, being the head teacher at Manyatta Jillo school. On that material day, DW3 did not report to school, and his father on noticing the same, called DW5 and requested him to go and look him. He went to their house, but he did not find him, only to later learn that DW3 had been arrested in a police raid. He emphasized that DW3 is a student at Dakabaricha Primary School and did not own any firearm.
48. In crossexamination, DW5 confirmed that on 15 th December 2024, he saw DW3 at his house, where he had studied with his daughter. He reiterated that they resided at Manyatta Shone Liban within Milima tatu and that his nephew (DW3) was arrested while jogging around Manyatta Galba
49. DW6, Antonella Ellema Guyu, testified that she resides at Milima Tatu and confirmed that she was mother to DW3. She explained that on 16 th December 2024, DW3 woke up at around 4.00 a.m. to study, as was his routine, before heading to the mosque for the 6.00 a.m prayers. After prayers, he would go for his morning run along the road to Aldaya, as he was an athlete and returned home around 7.00 a.m., but on the material day he did not return on time.
50. By 9.00 a.m., she became concerned and called his father, who had gone to school and he advised her to ask neighbours if they had seen him and he also made call, including to DW5. They later heard rumours that people had been arrested and taken away in police vehicles. Together, they went to the police station, where they found DW3. When asked, DW3 said he did not know why he had been arrested, but later in court they were charged of being in possession of firearm and ammunition. She added that on 15 th December 2024 DW3 had been at the home of DW5, studying with his daughter in Grade 8, before returning home to sleep. She had never seen her son with a gun and was shocked at the charges leveled against him.
51. She was also affirmed that she was not acquainted with the other co accused as they were not from their Manyatta at Millima Tatu, and that Manyatta Daaba, where the alleged guns were recovered was far away from their Manyatta. There was also no link between the recovered guns with her child (DW3) and she urged the court to acquit him of the charges faced.
52. The learned trial magistrate considered all the evidence adduced and found the Appellants each guilty of the offence of being in possession of a firearm without a firearm certificate and being in possession of ammunition without a firearm certificate and proceeded to convict all of them under Section 215 of the criminal procedure code . After mitigation, the trial court sentenced the Appellants to serve seven years imprisonment each.
D. THE APPEAL
53. Being wholly dissatisfied with the said conviction and sentence, the 1 st and 2 nd Appellants file different Appeals, but the said files were consolidated vide this court’s order dated 6 th May 2026. The 1 st Appellant in his petition of appeal and raised the following grounds of appeal;
(a) THAT the learned trial magistrate erred in law and fact by failing to determine that the prosecution had not discharged its burden of proof, as no direct or circumstantial evidence was offered to link the appellant to the offence beyond reasonable doubt.
(b) THAT the learned trial magistrate erred in law and fact by failing to determine that none of the prosecution witnesses claimed to have recovered firearm AK47 serial number 1972/P06349 with 30 rounds of ammunition from the appellant herein.
(c) THAT the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution testimony, both oral and documentary, including the three inventory exhibits, was fundamentally contradictory, rendering any conviction unsafe.
(d) THAT the learned trial magistrate erred in law by failing to establish that legal possession of the firearm had not been proved beyond reasonable doubt, as the appellant’s presence and/or control over the alleged crime scene was not established to the required legal standard.
(e) THAT the learned trial magistrate erred in law and fact by failing to consider the numerous inconsistencies and contradictions in the prosecution evidence, thereby making the conviction and sentence unsafe.
(f) THAT the learned trial magistrate erred in law and fact by failing to consider that the defence case was uncontroverted and unshaken, and had raised sufficient reasonable doubt against the prosecution’s case.
(g) THAT the sentence imposed upon the appellant was harsh, and the trial court failed to consider mitigation and the need for a presentence report, particularly given the lives directly dependent on the appellant.
54. Additionally, the 2 nd Appellant filed his petition of appeal and raised the following grounds;
a) THAT the learned trial magistrate erred in law by determining that the prosecution had proved its case beyond reasonable doubt, whereas the standard of proof required in criminal law was not met.
b) THAT the learned trial magistrate erred in law and fact by failing to consider the defence and mitigation tendered by the appellant.
c) THAT the learned trial magistrate erred in law and fact by passing a harsh and excessive sentence without regard to the circumstances of the case.
d) THAT the learned trial magistrate failed to consider material discrepancies and inconsistencies in the prosecution evidence before arriving at judgment.
e) THAT the learned trial magistrate failed to properly evaluate the evidence and determine that the case against the appellant did not meet the required legal standard .
55. Both Appellants prayed that their appeals be allowed, the conviction and sentence set aside, and that they be set at liberty. The
E. THE APPELLANTS SUBMISSIONS
56. In challenging their conviction and sentence, the Appellants submitted that the trial court erred in both law and fact by failing to properly evaluate the evidence, reaching a conclusion unsupported by the evidence on record. Through their counsel, they argued that the prosecution failed to establish the essential elements of physical or constructive possession of the firearms and
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