[2012] KEHC 1006 (KLR)

REPUBLIC OF KENYA

High Court at Kitale

Criminal Appeal 122 of 2010 [if gte mso 9]><xml>

Normal 0

false false false

EN-GB X-NONE X-NONE

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; text-autospace:ideograph-other; font-size:12. 0pt;"Liberation Serif","serif";} </style> <![endif]

KAPELO AMANDUM ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT.

VERSUS

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: REPUBLIC.

(Being an appeal from the original conviction and sentence of G.M.A. Ong'ondo – PM. in Criminal Case No. 205 of 2009 delivered on 19th October, 2012 at Kapenguria.)

J U D G M E N T.

This appeal arises from the decision and judgment of the Principal Magistrate in Kapenguria Criminal Case No. 205 of 2009 in which the appellant, Kapelo Amandum, was convicted and sentenced to a concurrent term of five (5) years imprisonment on two counts of possession of firearms without a valid certificate contrary to section 4 (1) read with section 4 (3) (5) of the Firearms Act and possession of ammunition contrary to section 4 (2) read with section 4 (3)(b) of the Firearms Act.

It was alleged that on the 15th February, 2009 at Cherangany village Kacheliba Pokot North, the appellant was found in possession of a G3 Rifle S/No. A3 979648R and one round of 7. 62 mm ammunition without a firearm certificate.

After pleading not guilty to both counts, the appellant was tried, convicted and sentenced accordingly. He was however, dissatisfied with the conviction and sentence and preferred the present appeal on the basis of the grounds contained in the petition of appeal filed herein on 26th October, 2010. At the hearing of the appeal, the appellant relied on his written submissions.

The learned Prosecution Counsel, Mr. Chelashow, opposed the appeal by adopting the submissions made by the respondent in a previous appeal No. 20 of 2010 involving the appellant and another.

In that previous appeal; the respondent relied on the evidence of PW2 which implicated the appellant with an offence other than the present one.

Be that as it may, the duty of a first appellate court is to re-visit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeking and hearing the witness.

In that regard, the prosecution case was briefly that on the material date, Ben Apelatum (PW1), a chief at the Cherangany area of Kacheliba received information that a theft suspect had been apprehended at a local trading centre. The chief proceeded to the scene and found the appellant; a stranger in the area, having been apprehended by members of the public who were baying for his blood. The members of public informed the chief that the appellant was found with a bag which was found to contain a hacksaw, among other things.

The chief interviewed the appellant and was told that he (appellant) had a rifle at a place called Kalengorok. The appellant led the chief to a place across river Suam where a G3 rifle and its magazine were recovered on the ground near a fence. Thereafter, the appellant was handed over to the police.

Peter Lonyang (PW2),was bathing at river Suam on the material date at 2. 00p.m. When the appellant arrived and enquired about the local market. The two thereafter proceeded to Imenpoet Trading Centre where he (PW2) informed some people that the appellant was a suspicious character. The appellant was then suspected of shop breaking and stealing and was apprehended. A mob of people had the intention of lynching him. He led to the recovery of a G3 rifle and its magazine.

P.C. Benedict Mwendwa (PW3) of Kapenguria C.I.D. investigated the matter and later charged the appellant with the present offences.

In his defence, the appellant denied the offences and said that he was at a market in Cherangany where he had gone to meet a girlfriend when Lonyang (PW2) and others appeared and interrogated him with regard to his girlfriend. Members of the public gathered at the scene and claimed that he was a stranger in the area and that shop had been broken into at the market. He was suspected and arrested. He knew nothing about the firearm and ammunition. He saw them for the first time at Kapenguria police station.

In convincting the appellant, the learned trial magistrate heavily relied on the evidence of the chief (PW1) and Lonyang (PW2) to hold that the appellant was in possession of the firearm and ammunition. The two witnesses indicated that the appellant led them to a place where the firearm and ammunition were recovered. After a re-examination of the evidence, it is the opinion of this court that evidence of possession of the firearm and ammunition by the appellant was not strong and reliable enough.

The appellant was not found in actual possession of the items. He is said to have led the chief (PW1) and Lonyang (PW2) to a place where the items were allegedly recovered.

The said place was a ground near a fence or a trench covered with soil in a bush or on land belonging to a resident. The chief (PW1) was not certain as to where the firearm and ammunition were recovered. He resorted to contradicting himself in that regard thereby casting suspicion on the credibility of his evidence.

Lonyang (PW2) was not specific as to where the firearm and ammunition were recovered. He merely said that the appellant led to the recovery of the items at Cherangany area.

From the evidence of the chief and Lonyang (PW2), it was clear that the appellant was apprehended and implicated with the two offences simply because he was a stranger in the area where shops had been broken into and properly stolen from therein. The evidence against him was incapable of establishing beyond reasonable doubt that he was indeed found in possession of a firearm and ammunition.

It may also be instructive to note that the firearm and ammunition were not examined by a ballistic expert for the purposes of ascertaining that they were firearms as defined by the Firearm Act.

At least, this court did not see a report from a ballistic expert. The absence of such a report left doubt as to whether indeed any firearm was found in possession of the accused. This omission was fatal to the prosecution case.

It is therefore the finding of this court that the prosecution case against the appellant was not proved beyond reasonable doubt. His conviction by the learned trial magistrate was unsafe.

In the end result, this appeal succeeds. The appellant's conviction on both counts is quashed and the sentence set aside.

The appellant be set at liberty forthwith unless otherwise lawfully withheld.

[Delivered & signed this 30th day of October, 2012. ]

J.R. KARANJA.

JUDGE.