[2017] KEHC 1756 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO.141 OF 2017

(Appeal Originating from Nyahururu CM’s Court Cr.No.914 of 2013 by: Hon. A.W. Mukenga – R.M.)

GEORGE MWANGI WACHUKA…………………………APPELLANT

-V E R S U S –

REPUBLIC………..………………………..…………….RESPONDENT

J U D G M E N T

George Mwangi Wachuka,the appellant, was charged with the following offences:

Count 1:

Preparation to commit a felony contrary to Section 308(1) of the Penal Code.

The particulars of the charge are that on 18/6/2013 at Mairo Inya Township, within Nyandarua County, was found armed with dangerous weapons namely, homemade pistol, metal bar, and mask, in circumstances that indicated that he was so armed with intent to commit a felony namely robbery.

Count 2:

Being in possession of narcotic drugs contrary to Section 3(1) as read with Section 4 of the Narcotic and Substance Control Act No.4 of 1994, in that on 18/6/2013 at Mairo Inya Township within Nyandarua County, was in possession of cannabis sativa (bhang) to wit 9 rolls which was not in any form of medical preparation. He pleaded not guilty to the charges and after a full trial, he was found guilty on both counts and was sentenced to 7 years on Count 1 and 2 years on Count II and sentences were ordered to run concurrently.

Being aggrieved by the conviction and sentence, the appellant filed this appeal dated 26/7/2016. Mr. Waichungo, counsel for the appellant filed further grounds of appeal on 16/3/2017. The grounds of appeal are as follows:

1. That the trial court erred in finding that the items produced as exhibits were dangerous and offensive weapons;

2. That the court erred in finding that the prosecution evidence was credible yet the same was contradictory and full of falsehoods;

3. That the court erred in failing to find that the appellant was charged under the wrong names;

4. That the court erred in dismissing the appellant’s defence and shifting the burden of proof to the appellant;

5. That the court erred in convicting the appellant against the weight of the evidence;

6. That the evidence did not disclose an offence;

7. That the court erred in finding that the exhibit produced was a homemade gun without forensic evidence.

The appellant therefore prays that the court do quash the conviction and set aside the sentence.

This being a first appeal, this court is required to evaluate all the evidence tendered in the trial court, analyze it and arrive at its own determination see Okeno v Republic (1972 EA 32).

The prosecution case was as follows:

PW1 APC Ashford Mwarini Munene and PW2 AP CPL Karuri were on a patrol at Mairo Inya Township on 18/1/2013 about 8. 00p.m. when they met two men smoking bhang along the road. They arrested one but one managed to escape. They searched the appellant and found him with a homemade pistol, a blue mask, a knife, 3 yellow paper bags, phone, torch, iron metal rod cross bar and 9 rolls of bhang and they handed him over to Nyahururu Police Station instead of Mairo Inya Police Station which was the nearest. PW2 CPL Stephen Karuri confirmed that he was with PW1 at the time of arresting the appellant PW3 James Michael Warimu from Government Analyst received a khaki envelope from CID Nyahururu containing 9 rolls of 6. 3 grams, plant material with an exhibit memo form. He was requested to ascertain whether the plant material was a narcotic drug. He tested the material and found it to be cannabis sativa. He prepared a report and the exhibit memo form which he produced in court together with the cannabis sativa.

PW4 CPL David Njuki of CID Nyandarua was informed of the arrest of a suspect who was held at Mairo Inya Police Station. He re-arrested him with several items which he kept as exhibits and included homemade pistol, metal bar, pliers, knife, a roll of bhang, mask, polythene papers, torch and a Nokia phone.

In his defence the appellant (DW1) said that he is a mason and on 18/6/2013, he was at work at a construction site till 7. 00 p.m. On the way home, he entered victory bar where he took some alcohol and left only to meet AP Officers who searched him and asked for money. They took his Kshs.8,000/= and a Nokia phone, he was taken to the AP Post at Mairo Inya and next day to Nyahururu Police Station.

DW2, Samuel Gikunju a mason, said he was with the appellant at work till 7. 00 p.m. on 18/6/2013, when they left and passed by Victory Bar, took some alcohol and on leaving, met AP officers who searched them, asked for money which he did not have and was taken to the police station. He called his brother who went to the post and he was released leaving others behind. He said they were with the appellant, Solomon Mwangi and Alex Mathenge DW3 John Githinji Murefu said he was at a construction site on 18th and on the way home about 8. 00 p.m. he entered a butchery to take soup while his friends entered a bar; that on the way home, they met police officers who released him but arrested the others. He said he was with Gikunju or Mwangi.

In support of the grounds of appeal, Mr. Waichungo submitted that the prosecution failed to prove that the appellant did any overt act to show that an offence act was about to be committed; that the appellant was walking on a public road; that there was no evidence of a firearm expert to prove that the home made gun was capable of firing to be adopted for use to injure a person; that the homemade gun was not proved to be a lethal weapon; that the metal bar and mask were not dangerous weapons and that the burden was upon the prosecution to prove that there was an attempt to use them; that in his defence, the appellant said that he was coming from work and the metal bar was a tool of trade. Counsel relied on the following decision of CR.A.59/2000 Manuel Legasiani & others Republic and Criminal Revision 26/2015 Dishon Nyambega Munene v Republic. In the latter case J. Majanja held that mere possession of a firearm not coupled with an overt act is not an offence. Counsel also relied on the decision of Joseph Ng’ang’a Mugure and 2 others v Republic CR.A.182, 183 and 195/2013, that being on a public road at night does not constitute a criminal offence.

On whether there were contradictions, in the prosecution case, counsel submitted that whereas PW1 and 2 denied having taken the appellant’s phone, the investigating officer admitted that it was recovered and was at the police station and secondly there was contradictory evidence as to how many rolls of bhang were recovered, 6 or 9. He argued that there was need for an inventory to be produced by the police on what they found with the appellant.

On sentence, counsel argued that the appellant has so far served one year on count II and should be released.

In opposing the appeal, Mr. Mong’are learned counsel for the State submitted that the items found with the appellant were dangerous weapons and that there is no requirement in law that the police make an inventory of the things recovered; he further argued that an overt act was committed in that the appellant attempted to escape and had to be punished and no explanation was given for the exhibits. He urged the court to dismiss this appeal.

For a charge under Section 308(1) of the Penal Code, the prosecution has to prove that the appellant was armed with a dangerous or offensive weapon under circumstances that indicated that he was so armed with intent to commit a felony.

The Black’s Law Dictionary 8th Edition defines preparation to mean:

“the act or process of devising the means necessary to commit a crime”

Another definition that the court considered in Manuel’s Case (Supra) is that found in the Concise Oxford Dictionary, 8th Edition:

“preparation is not a term of art, in its ordinary meaning it means,

“the act or an instance of preparing or

“the process of being prepared”

In the same case, the court of appeal said “to prove the offence in question, some overt act, to show that a felony was about to be committed, has to be shown. Mere possession of a firearm not coupled with such an overt act is not an offence under section 308(1) of the Penal Code. If the firearm is a lethal weapon and is held without license another offence may be indicated.”

In the case of Maina and 3 others v Republic (1986) KLR 301 cited in Mugure’s case (Supra) the Court of Appeal dealt with a similar case and held that the prosecution must adduce evidence which proximates the possession of the dangerous weapon with the commission of a felony which can be discerned from the evidence.

In the present case, the appellant was said to have been found in possession of a homemade pistol, metal bar and mask. In the evidence before the court, several other things were produced i.e. knife; fishing hooks, pliers and 3 big polythene paper bags.

The charge however mentions only three items, no explanation was given why the other items were left out. PW1 & 2 told the court that they found the appellant and his colleague smoking bhang. He has also been charged with possession of bhang. PW1 & 2 did not allude to any other act that may have led them to the conclusion that the appellant and colleague were about to commit a felony.

A metal and mask are not per se dangerous or offensive weapons. However, a homemade pistol may be a lethal weapon and it was the duty of the prosecution to adduce such expert evidence to prove that it was a lethal weapon or was capable of firing see Mwangi S/O Njoroge v Republic (1954) 21 EACA 377 and Gatheru S/O Nyagwara v Republic 1954 21 EACA 384, In Mwaura & others v Republic (1973) EA 373, the court observed that although there is no definition of “dangerous or offensive weapon” specifically applicable to Section 308(1) of the Penal Code, it ought to be shown that the weapon was one which could have caused injury. Without such expert evidence on the homemade pistol, I find that the offence was not proved to the required standard.

The appellant complained that he was charged under the wrong name. The charge reads that accused is George Mwangi Wachuka. In his defence the appellant described himself as Solomon Mwangi Kinyanjui. However, when he appeared in court, the appellant never complained that those were not his names. He cannot raise that issue at this stage.

As regards count II the evidence of the prosecution is said to have been contradictory and the appellant challenged PW1 and 2 as to why they did not have an inventory of the items they recovered. Although there is no requirement in law that an inventory be prepared by police officers on the recovered items, it is a good practice for the police to prepare one because they deal with so many cases and there is real likelihood of one forgetting or confusing what was recorded in the different cases. PW1 did not mention the number of rolls of bhang that were recovered. PW2 said the rolls were 9 and so did PW3. At first, PW4 had mentioned seeing 6 rolls but later changed and said they were 9. I find no contradiction as to how many rolls of bhang were recovered.

I have considered the appellant’s defence. Though he had not alluded to having been with other people during the prosecution case, he called two witnesses who were allegedly with him at the time of arrest. According to the appellant, the other two were released after they bribed the police. However, DW2 denied having given the police any money though they demanded for it. Likewise, DW3 denied bribing the police. Further, DW2 claimed to have been with DW1, 3 and one Alex. DW3 however denied having been with Alex. One wonders whether they were together at all. The trial court found that the defence evidence was contradictory and not believable. I have no reason to find otherwise. I prefer the prosecution evidence that the appellant was found in possession of the 9 rolls of bhang which were examined by PW5 and confirmed to be cannabis sativa,

In the end, I find that the prosecution did not prove the offence of preparation to commit a felony under Section 308(1) of the Penal Code to the required standard and I quash the conviction and set aside the sentence.

However, I find that the conviction on the 2nd count is well founded and I confirm it. The accused was sentenced to serve 2 years imprisonment on 22/7/2016. So far, he has served one year 3 months. I will set aside the sentence of 2 years imprisonment and instead sentence him to the period so far served and he should be released forthwith unless otherwise lawfully held.

Dated, Signed and Delivered at NYAHURURU this 14thday ofNovember,2017.

…………………

R.P.V. Wendoh

JUDGE

PRESENT:

Mr. Mutembei - Prosecution Counsel

Soi - Court Assistant

Appellant – present

Ms. Mureithi h/b for Mr. Waichungo - for appellant