[2002] KEHC 130 (KLR)
The court found that the conviction for preparation to commit a felony could not be sustained as there was no overt act by the appellants to establish preparation beyond reasonable doubt, and the sentence imposed was illegal due to statutory changes. However, the evidence adduced by the prosecution, including...
Source-derived case information.
- Citation
- [2002] KEHC 130 (KLR)
- Parties
- Appellant: Francis Kibia; Appellant: Michael Atanga Roti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1120 & 1121 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; convictions and sentences for count one quashed; convictions and sentences for counts 2, 3, 4, and 5 upheld.
- Legal Topics
- Preparation to Commit Felony, Possession of Firearm Without Certificate, Possession of Suspected Stolen Property, Evidence Evaluation, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Kibia
Appellant
Michael Atanga Roti
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for preparation to commit a felony was supported by sufficient evidence.
- 2 Whether the convictions for possession of a firearm without a certificate, possession of ammunition, and possession of suspected stolen property were proved beyond reasonable doubt.
- 3 Whether the sentences imposed were lawful and appropriate.
Ratio Decidendi
The court found that the conviction for preparation to commit a felony could not be sustained as there was no overt act by the appellants to establish preparation beyond reasonable doubt, and the sentence imposed was illegal due to statutory changes. However, the evidence adduced by the prosecution, including testimony from police officers and a Kenya Revenue Authority officer, proved beyond reasonable doubt that the appellants were in possession of a firearm without a certificate, ammunition, and suspected stolen property. The appellants' deliberate concealment and alteration of the motor vehicle registration numbers further supported the convictions. The sentences imposed for these...
Court Disposition
Appeal allowed in part; convictions and sentences for count one quashed; convictions and sentences for counts 2, 3, 4, and 5 upheld.
Orders
- Conviction and sentence in count one set aside for both appellants.
- Appeal against convictions and sentences in counts 2, 3, 4, and 5 dismissed.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO 1120 OF 2001
(From Original Conviction (s) and Sentence (s) in Criminal Case No.1571 of
2000 of the Chief Magistrate’s Court at Nairobi Mary Mugo(Mrs)
FRANCIS KIBIA………………………………………..…..APPELLANT
VERSUS
REPUBLIC……………..………………………………..RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO 1121 OF 2001
FROM ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL
CASE NO 1571 OF 2000 OF THE CHIEF MAGISTRATE’S COURT AT NAIROBI
MICHAEL ATANGA ROTI………………………………..APPELLANT
VERSUS
REPUBLIC…………………………………...………RESPONDENT
JUDGMENT
These appeals are consolidated. The two appellants faced a joint charge with five counts jointly and severally.
In count one, they both faced the offence of preparation to commit a felony C/s 308(1) of the Penal Code.
In count three, they both faced the charge of being in possession of a firearm without a firearm certificate C/s 4(2) of the Firearms act cap 114 Laws of Kenya.
Count five related to both of them being in possession of suspected stolen property C/s 323 of the penal code.
Counts 2 and 4 only affected the second appellant herein Michael Atonga Roti and related to possession of firearm and ammunition respectively.
The two having denied the offences a full trial followed after which they were convicted on all the offences as charged. Being aggrieved by the said convictions and sentences they appealed.
At the hearing of the appeals, the learned counsel for the republic submitted that he did not support the conviction and sentence in respect of the first count on the basis that there was not sufficient evidence to sustain the same and the sentence was illegal.
Having evaluated the evidence adduced in respect of that offence (preparation to commit a felony), I with respect, agree that, the conviction cannot be sustained. There was no overt act displayed by either of the two appellants to establish beyond any doubt that they were preparing to commit the alleged offence. On the sentence, the minimum sentence was done away with by Act No.22 of 1987.
In addressing counts 2,3,4 and 5, the learned trial magistrate went over the evidence of the police officers who accosted the appellants searched them and the motor vehicle and how recoveries of firearms were done. They also noticed the discrepancies in respect of the registration numbers of the motor vehicle.
The officer from the Kenya Revenue authority gave evidence as to the true identity of the motor vehicle. My own assessment is that the appellants deliberately concealed the registration numbers, re-imposed others, with the full knowledge that the same did not belong to the said car.
The four remaining counts, going by the evidence, were proved beyond any reasonable doubt and the convictions were well founded. The sentences can not be said to be excessive in any way. If anything they were on the lower side.
Accordingly, appeal against conviction and sentence in count one is allowed in favour of both appellants while that in respect of counts 2,3,4, and 5 (five) is dismissed.
Orders accordingly.
Dated and delivered at Nairobi this 23rd day of May, 2002.
MBOGHOLI MSAGHA
JUDGE
Judgement read in open court in the presence of Mr Monda for the state and the appellants.
MBOGHOLI MSAGHA
JUDGE
23/5/2002