[2012] KEHC 5636 (KLR)
The court found that the appellant's plea of guilty on counts 1, 2, and 3 was not unequivocal because the prosecution failed to produce the exhibits (firearm, ammunition, hand grenade) in court. This omission was fatal to the prosecution's case, and the convictions on those counts could not stand. The court accepted...
Source-derived case information.
- Citation
- [2012] KEHC 5636 (KLR)
- Parties
- Appellant: Ahmed Abdi Hussein; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 399 & 402 of 2010
- Procedural Posture
- Criminal Appeal / Ruling on Appeal and Sentence Review
- Outcome
- appeal allowed in part; convictions on counts 1, 2, and 3 quashed; sentence on count 4 deemed served; repatriation ordered
- Judges
- LA Achode
- Legal Topics
- Plea of Guilty, Production of Exhibits, Unlawful Presence, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Abdi Hussein
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal and Sentence Review
Legal Issues
- 1 Whether the appellant's plea of guilty on counts 1, 2, and 3 was unequivocal in the absence of production of exhibits.
- 2 Whether the conviction and sentence on count 4 for unlawful presence in Kenya were lawful.
Ratio Decidendi
The court found that the appellant's plea of guilty on counts 1, 2, and 3 was not unequivocal because the prosecution failed to produce the exhibits (firearm, ammunition, hand grenade) in court. This omission was fatal to the prosecution's case, and the convictions on those counts could not stand. The court accepted the State's concession and quashed the convictions and sentences for those counts. Regarding count 4, the court held that the sentence of three months' imprisonment for unlawful presence in Kenya was lawful. Given that the appellant had already served approximately two years in prison, the court found that he had served his sentence and ordered his repatriation to Somalia.
Court Disposition
appeal allowed in part; convictions on counts 1, 2, and 3 quashed; sentence on count 4 deemed served; repatriation ordered
Orders
- Convictions in count 1, count 2, and count 3 are quashed and sentences set aside.
- Appellant having served sentence in count 4 is ordered repatriated to Somalia.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 399 & 402 OF 2010
AHMED ABDI HUSSEIN.................................APPELLANT
VERSUS
REPUBLIC..................................................RESPONDENT
RULING
1. The appellant was convicted on his own plea of guilty on four counts. In count 1, count 2 and count 3 respectively he was convicted under Section 89(1)of thePenal Code for being in possession of firearm wherein it was stated that he was found in possession of one AK 47 rifle, 99 (ninety nine) rounds of ammunition and a hand grenade in circumstances which raised reasonable presumption that the said items were intended to be used in manner that was prejudicial to public order.
2. In count number 4, he was convicted under Section 13(2) (c)ofCap 172 Laws ofKenya (The immigration Act), for being unlawfully present in Kenya without a valid entry permit while being a Somali National.
3. He has applied to court for the review of his sentence stating that indeed he was found in possession of the items in count 1, count 2 and count 3 respectively, but that on count 4, he was not aware that he had crossed into Kenyan Territory at the time of arrest there being no mark at the border.
4. Learned state counsel Miss Lewa appearing for the State conceded the appeal on grounds that the prosecution’s failure to produce the exhibits in count 1, count 2 and count 3was fatal to its case. The court should not have concluded that the stated exhibits were firearms without their being produced in court.
5. In her view therefore, the appellant’s plea in count 1, count 2andcount 3 respectively was not unequivocal and the conviction on each of those counts cannot stand.
6. In sum I note that the learned State Counsel conceded that the appellant’s plea in count 1, count 2andcount 3 was not unequivocal. The sentence imposed in count number 4 was three months imprisonment and was lawful. The appellant having been in prison for a period approximating two years from 27th May 2010 when the sentence commenced. I am of the view that he has served sentence since the sentences in count 1, count 2andcount 3 respectively have been conceded.
7. Reasons wherefore the appeal is allowed. The convictions in count 1, count 2andcount 3 respectively are quashed and the sentences therein set aside. The appellant having already served sentence in count 4 is ordered repatriated back to the republic of Somalia.
SIGNED DATEDandDELIVEREDin open court this 22ndday of March2012.
L. A. ACHODE
JUDGE