[2002] KEHC 1261 (KLR)
The court found that the prosecution failed to prove the element of possession required under the Firearms Act. The evidence showed that the firearms were discovered in cartons that had not been cleared by the appellants and that the goods had been tampered with while in police custody. As clearing agents, the...
Source-derived case information.
- Citation
- [2002] KEHC 1261 (KLR)
- Parties
- Appellant: Miktar Samon Sheikh; Appellant: Ahmed Koriyow Ali; Appellant: Abdi Kadir Noor Isaack; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 631 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Firearms Offences, Possession of Firearms, Criminal Appeals, Agency Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miktar Samon Sheikh
Appellant
Ahmed Koriyow Ali
Appellant
Abdi Kadir Noor Isaack
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants were in possession of firearms within the meaning of the law.
- 2 Whether the evidence adduced was sufficient to sustain a conviction for possession of firearms without a certificate.
- 3 Whether the appellants, as clearing agents, could be held criminally liable for items not in their custody.
Ratio Decidendi
The court found that the prosecution failed to prove the element of possession required under the Firearms Act. The evidence showed that the firearms were discovered in cartons that had not been cleared by the appellants and that the goods had been tampered with while in police custody. As clearing agents, the appellants did not have custody or control over the cartons containing the firearms. Furthermore, the appellants assisted the police in tracing the actual owner of the goods, who was subsequently charged but absconded. In these circumstances, the court held that the convictions were not supported by the evidence and that the appellants could not be held criminally liable for...
Court Disposition
appeal_allowed
Orders
- Convictions quashed and sentences set aside for all three appellants.
- Terms of release on bail vacated.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
APPELLATE SIDE
CRIMINAL APPEAL NO. 631 OF 2002
From Original Conviction(s) and Sentence(s) in Criminal Case No. 690 of 2001 of the Snr. Principal Magistrate’s Court at Kibera(W. Karanja (Mrs)
MIKTAR SAMON SHEIKH………………………………….APPELLANT
VERSUS
REPUBLIC………………………………………………….RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 632 OF 2002
(From original conviction and Sentence in Criminal Case no. 690 of 2001 of the Senior Principal Magistrate’s court at Kibera(W. Karanja (Mrs)
AHMED KORIYOW ALI………………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 633 OF 2002
(From Original conviction and sentence in criminal case NO. 690 of 2001, of the Senior Principal Magistrate’s Court at Kibera (W. Karanja (Mrs)
ABDI KADIR NOOR ISAACK………………………………APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
These appeals are consolidated. The three appellant were charged with two offences. In count one they faced the charge of unlawful importation of firearms c/s 27(2) of The Firearms Act Cap. 114 Laws of Kenya. In count tow, they were charged with being in possession of firearms c/s 4(1) (2) (a) of the same act without a firearm certificate. They denied the charges.
After a full trial, all the three appellants, were acquitted of the first count but convicted of the second count. Following that conviction, they were each sentenced to six(6) years imprisonment. Being aggrieved by the said convictions and sentences, they appealed.
At the hearing of these appeals the learned counsel for the appellants took the court through the record to show that the evidence did not warrant the convictions. The learned counsel for the Republic conceded the appeals, in agreement with the learned counsel for the appellant.
As the first appellate court, it is my duty to re-examine the entire evidence adduced in the lower court and arrive at independent conclusions.This I have done. At the end of it all. I am, with respect, in agreement with both learned counsel that he convictions were not well founded.
The appellants were clearing agents who cleared eight 8 cartons but which were detained for verification of duty payments. The goods remained in the custody of the police and when they were next viewed. The cartons were now ten (10) instead of eight(8). The three firearms were found in the cartons that the appellants had not cleared. The same had also been tampered with in the absence of the appellants.
On interrogation, the appellants led the police to the actual owner of the goods. The man was arrested and jointly charged with the appellants but his case was withdrawn as he disappeared after being bonded.
The issue of possession in law was not proved in view of the circumstances of this case. As agents, the appellants could not be said to be in possession of what they never handled. In view of the foregoing the appeals must succeed and it is so ordered.
Accordingly, the convictions are hereby quashed and sentences set aside. The three appellants are out on bail pending the determination of those appeal. The terms of their release are now vacated.
The learned trial magistrate made no orders in respect of the subject mater involved. I order that the firearms shall be forfeited to the state while the owner of the goods cleared by the appellants will be at liberty to claim the same through the relevant authority.
Orders accordingly.
Dated and delivered at Nairobi this 29th day of July, 2002.
MBOGHOLI MSAGHA JUDGE