[2022] KEHC 15337 (KLR)

Lepartanapa v Republic (Criminal Appeal 35 of 2020) [2022] KEHC 15337 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15337 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 35 of 2020

HPG Waweru, J

November 10, 2022

Between

Bernard Lepartanapa

Appellant

and

Republic

Respondent

(Appeal from original Conviction and Sentence in Maralal PM Criminal Case No 813 of 2017 – R Koech, PM)

Judgment

1. The appellant herein, Bernard Lepartanapa, was convicted after trial in counts III and IV of being in possession of a firearm and ammunition respectively contrary to section 89(1) of the Penal Code. It was alleged that between 25th and October 26, 2017 at Loborangari area in Losuuk Location in Samburu–Central County within Samburu County, he was found in possession of, respectively, a firearm namely AK 47 rifle Serial No 2527906 and twenty-three (23) rounds of 7. 62 x 39 special calibre ammunition, “without a firearm certificate”. The charges in counts I and II (robbery with violence contrary to section 296(2) and stealing stock respectively contrary to section 278, both of the Penal Code) were withdrawn.

2. On May 7, 2020 the appellant was sentenced to seven (7) years imprisonment in each count, the sentences to run concurrently. Although he appealed against both conviction and sentence, at the hearing of the appeal he chose to argue only the appeal against sentence. Nonetheless this court has chosen to look at the convictions as well.

3. The particulars of the offence as laid in counts III and IV clearly disclose offences under section 4 of the Firearms Act, cap 114. They do not disclose at all the offences charged under section 89(1) of the Penal Code. That provision of the law states –“89. (1)Any person who, without reasonable excuse, carries or has in his possession or under his control, any firearm or other offensive weapon, or any ammunition, incendiary material or explosive, in circumstances which raise a reasonable presumption that the firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order, is guilty of an offence and is liable to imprisonment for a term of not less than seven years and not more than fifteen years.”

4. As the particulars of the offences in counts III and IV did not disclose the offences charges at all, the trial of the appellant should not have proceeded without appropriate amendment to the charge, and he certainly should not have been convicted without such amendment of the charge. The charges in counts III and IV were thus fatally defective. This court will not allow the convictions to stand.

5. In the result I will allow the appellant’s appeal in its entirety. Both convictions are hereby quashed and the sentences set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 10THDAY OF NOVEMBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 10THDAY OF NOVEMBER 2022