[2022] KEHC 10589 (KLR)

Mohammed v Republic (Criminal Appeal 28 of 2020) [2022] KEHC 10589 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10589 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Appeal 28 of 2020

A Ali-Aroni, J

June 10, 2022

Between

Adankheir Barrow Mohammed

Appellant

and

Republic

Respondent

(Being an Appeal against the conviction and sentence delivered by Hon. Mugendi Nyaga (SRM) on 21st October 2020 in Criminal Case Number 45 of 2020)

Judgment

1. Adankheir Barrow Mohammed the appellant was charged together with two other accused persons on three counts as follows; -Count I- Being in possession of a firearm without a firearms license contrary to section 4 (1) of the Firearms Act.Count II- Being in possession of ammunition without holding a firearm certificate in force at the time c/sec 4 (2) (a) as read with section 4 (3) (a) of the Firearms Act.Count III- Being in possession of government stores c/sec 324 (2) as read withsection 36 of the Penal Code.

2. Particulars of the offence are that on the 2nd day of February 2020 at about 2020 hrs at Masalale roadblock in Eldas Sub County within Wajir County; they were jointly found in possession of G3 assault rifle series number A3 6046887 without a firearm certificate, four live rounds of ammunition of 7. 62 by 51mm caliber and government stores namely three (3) swagger-canes belonging to the Administration Police and Kenyan administration on board motor vehicle registration number KBX138E and suspected to have been unlawfully obtained.

3. The trial court acquitted the other two accused persons on all the counts and proceeded to convict and sentence the appellant on the said counts. The appellant was sentenced to serve 7 years’ imprisonment on count I and II, and 3 years on count III. The sentences were to run concurrently.

4. Aggrieved by the judgement the appellant filed his grounds of appeal on November 3, 2020; which he amended on February 5, 2021raising seventeen (17) grounds of appeal.

5. The said grounds maybe summarized as follows;i.defective charge sheetii.inconsistencies & contradictions in the prosecution evidence specifically the evidence of PW1, Pw2, Pw3, and Pw5iii.Lack of proper identification and lack of identification paradeiv.Reliance on the testimony of a deceased witness hence violating the provisions of section 33 of the Evidence Actv.Failure of the trial magistrate to consider that no proper inventory was done, the items allegedly recovered were components of a gun hence could not sustain the first count.

6. The appeal was canvassed by way of written submissions.

Appellant’s Submissions 7The appellant’s counsel submitted that the charge sheet was defective in that the provisions of section 4 (1) of the Firearms Act are descriptive and do not create an offence. The appellant was therefore greatly prejudiced when he was charged, convicted, and sentenced for an offence that did not known to law.Citing the cases of Gideon Njoroge v Republic [2021] eKLR and Enock Ebwogo v Republic[2011] eKLR the appellant submitted that there were grave inconsistencies in the evidence of PW1, PW2, PW3, and PW5 as to who and what was recovered from him. He also testified that the items he was allegedly found with were “planted” on him. Further that at Malkaguf, before the alleged search was conducted the Appellant and his companions were searched and nothing found on them. He never saw PW1, PW2, PW3, and PW5 recover the items from the vehicle.

8. The appellant further submitted that they were arrested at night. PW1 and PW2 admitted that they could not properly identify them. Without there being an identification parade, the appellant was not properly identified. He relied on the case of Athman Galgalo Bajila & 4 others v Republic [2005] eKLR where the court quashed the conviction of the accused persons for failure to conduct an identification parade.

9. Further to this, the appellant submitted, that the other prosecution witness who allegedly undertook the search together with PW1 was deceased at the time of the hearing. As such, the statements made by the prosecution about what he said and did are inadmissible, as they do not meet the exceptions set out in section 33 of the Evidence Act.

10. Lastly, the appellant submitted that the trial court shifted the burden of proof to him, and had it considered the inconsistencies in the testimonies it would have arrived at a different conclusion.

Respondent’s Submissions 11. The respondent submitted that the offences the appellant faced exist and are anchored in law. That section 4 (1) (a) of the Firearms Act prohibits the possession of a specific firearm without a license or permit hence the charge sheet was not defective.

12. Further it was submitted that the testimonies of the prosecution witnesses were consistent and corroborated each other. That the appellant faced charges of being in possession of a specific firearm hence the issue of ownership is irrelevant in this case.

13. On identity, the Respondent submitted that the appellant admitted being the driver of the motor vehicle, PW1 and PW2 each had a torchlight hence they easily identified the Appellant.

14. Further the statement made by PC Mosama (deceased) was direct evidence and therefore properly admitted by the trial magistrate. In this regard, the case of Kinyatti v Republic[1944] eKLR was cites.

15. Lastly, it was submitted that the Firearms Act provides for a life sentence for Count 1 and a minimum term of seven years for Count 2. and the sentences meted against the appellant were extremely lenient and should be upheld.

Analysis and Determination 16. As the first appellate court this court has a duty to re-consider the evidence afresh, evaluate the same in order to arrive its own conclusion. In the often-cited case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated on the duty of the court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. ”

17. It was the Prosecution’s case that on February 2, 2020 at around 9:30 p.m. PW1 PC Joseph Kimemia Mwangi, PW2 PC Luke Okai, and PC Peter Mosama (now deceased) were at the Masalale roadblock when they intercepted motor vehicle registration number KBX 138E Toyota Probox with three (3) passengers. Upon inspection of the motor vehicle, PW1 found a sack under the driver’s seat containing dismantled parts of a G3 rifle, bull stock and barrel. He also found swagger canes wrapped in a newspaper on the dashboard, two of them containing the administration police logo. They informed the deputy OCS Eldas police station what they found. The OCS Inspector Lai came in the company of OCPD Eldas Mr. Hussein and DCIO Mr. Bwire. The officers handed over the suspects and the exhibits for further examination.

18. In cross-examination, PW1 stated that they conducted the search simultaneously with PC Mosama. That he recovered the buttstock and barrel. At the time, they had a torch. He saw the suspect’s faces but he could not identify them. At the time of the search, two of the suspects had alighted the motor vehicle; only the driver was in the motor vehicle. He did not see what PC Mosama had recovered. He stated further that between Buna and Masalale there is another roadblock at Malkaguf.

19. PW2 testified that the motor vehicle was coming from Buna Direction headed towards Wajir Town. That his colleagues searched the motor vehicle. PC Mosama recovered a pistol and a magazine loaded with 4 rounds of ammunition. The caliber of the ammunition is 7. 62mm x 51mm. PW1 recovered a sack that had a barrel with working parts and a buttstock.

20. In cross-examination, he testified that he was two meters away from where the search was conducted. He shone a torchlight at the suspects and was able to identify them. He pointed at the said persons in court.

21. PW3 PC Kemboi Langat testified that on 2nd February 2020 at around 10:00 p.m. he was called by the DCIO requesting him to accompany him and the OCPD to Masalale roadblock. On arrival, they found that PW1, PW2 and PC Mosama had intercepted motor vehicle registration number KBX 138E and arrested 3 suspects. They took over the investigation and made an inventory of the recovery. The motor vehicle recovered was registration no. KBX 138E chassis No. NCD51-0143869 fitted with engine No. INZ0216762. The recovered firearm was serial No. G3 36046887. The same was dismantled. The pistol grip and the buttstock were separate. The magazine which had 4 rounds of ammunition was on its own. They also took inventory of 2 swagger sticks, 2 had AP logo the 3rd had a Kenyan Administration logo. They took the suspects mobile phones and the identity cards of the 1st and 3rd accused persons. They also took the driving license of the appellant. The driving license was genuine and scheduled to expire on 13/8/2020. On inquiry about the firearm license, they had none yet none of the three was enlisted in the Kenya police service.

22. In cross-examination, the witness told the court that he saw the accused persons at the scene an all the officers at the scene were aware of the recovered items. The recovery was done separately. PC Mosama recovered the pistol grip and the magazine with the rounds. PC Kimemia recovered the swagger sticks and the barrel with the working parts and the buttstocks. The officers handed over to him the exhibits and the motor vehicle. He wanted to establish the accused person’s clans to aid in the investigations as in the area, there are issues between the Degodia and the Ajurans clans and he had wanted to establish the motive. However, he was not able to do so.

23. PW4 Chief Inspector James Onyango is a firearms examiner. He examined the G3 rifle, 4 rounds of ammunition, and G3 rifle magazine. His duty was to ascertain (i) Whether the exhibit A1 was part of a rifle and if yes which type. (ii) Whether the parts can work if assembled (iii) Whether the exhibits were rounds of ammunition and if yes could they be fired (iv) if the exhibits were among government stores issued to security agencies (v) If the exhibits were serviceable (vi) if the exhibits were working parts and if yes which rifle.

24. He made a finding that exhibits A was a G3 rifle designed to fire and chamber rounds of ammunition in caliber 7. 62 x 51 mm. It was brought in parts in the body assembly. A buttstock assembly, a trigger assembly, a bold head assembly, and a return spring assembly.

25. He assembled the firearm and found it to be complete and in good mechanical condition. It was successfully fired using the four rounds of ammunition. He recovered the 4 cartridge cases and one bullet. They were live and were all fired in the G3 rifle. From his examination, he formed the opinion that Exhibit A and Exhibit B1 to B4 are firearms and ammunition respectively as defined under the Firearm Act. Exhibit D1 is a G3 rifle detached box magazine. It is complete in all its component parts and in good working order. It has a carriage capacity of 40 rounds of ammunition in caliber 7. 62 x 51 mm such as exhibits B1 to B4. It is a storage and trading component part of a G3 rifle such as exhibit A. He produced the report, exhibit memo, and ballistic report as exhibits.In cross-examination, he testified that the exhibits were not assembled. He received them in parts. He was to confirm if the exhibits made a firearm if assembled. The parts can be used in any G3 rifle.

26. PW5 PC Felix Ebu attached to ATPU Wajir testified that the three suspects were brought to their office where they took an inventory. Of the recovered items and investigations were conducted. The suspect gave information that they were from Malkaguf and headed to Habaswein. That is where the alleged owners of the rifles were. That he has tried to contact the owners but they were not available.

27. In cross-examination, he testified that some exhibits were recovered from the passenger’s side and others on the driver’s side. None of the accused admitted to being the owner of the motor vehicle. The appellant however admitted to being the driver. That the owner of the vehicle Awesi Ismail Yussuf on being interrogated said that he had given the motor vehicle to the appellant’s person’s brother.

28. The defence called 3 witnesses as follows;DW1 Ahmed Abukar Oman testified that his brother resides in Malkaguf. He was unwell and he called him to assist in taking care of livestock. He went to Malkaguf on 27th January 2020 and his brother getting well on 2 February 2020 he decided to return home. He went to Malkaguf center and was able to get a vehicle. The driver informed him that he was headed to Griftu and was charged Kshs. 300/=. They started their journey and arrived at a police barrier in Malkaguf center. At Malkaguf the vehicle was searched by 4 police officers. They then proceeded with the journey.On reaching Masalale road block they were stopped by three police officers. One was at the barrier while two were a distance from the barrier. They were asked to alight from the vehicle and lie down. The officers assaulted them, and then called for another vehicle. The officers did not search their vehicle. A GK vehicle came and they were taken to Eldas. He did not see any weapons in the vehicle. The officers did not require them to participate in the search. He saw the weapons the first time, when they were produced in court. He does not know how to use a firearm. He is not employed by the government. He knows nothing about the weapons and other items produced in court.

29. DW2 Adan kheir Mohammed Barrow, the appellant herein testified that on February 2, 2020 he left Griftu using the Eldas-Msalale-Malkaguf road. At Malkaguf he dropped his passengers. He decided to return to Griftu. Before getting to Malkaguf he met the 1st accused who sort for transport, he charged him Kshs. 300. On the way he gave a free lift to the 3rd accused who sort for assistance to go and see his sick wife. At Malkaguf their vehicle was searched, and they were let to proceed with the journey.

30. They arrived at Masalale road block at around 9:00 p.m. They found 3 police officers. One of the police officers asked him for money. When he said he did not have money they were told to alight the vehicle. The officers forced them to lie on their stomach and pointed guns at them. It was dark, he did not see the officers search his vehicle.

31. He further testified that as they were lying on the ground the officers made a call to Eldas. A police vehicle came. The officers who came had a sack. They later told them that the sack was recovered from the vehicle. He did not see the items recovered.

32. He also informed the court that the vehicle he was driving belonged to Awesi. He would pay Awesi Kshs. 1000/= a day. He would return the vehicle at night. At the time, he had worked for Awesi for one month. He did not search the vehicle that morning before starting the journey. He noted that Awesi was not brought to court to testify.Upon arrest they were booked at Eldas Police station. The 1st accused person had a bag when he boarded the vehicle. The bag was black in colour. The 3rd accused had nothing.

33. DW3 Abdi Sugow Adow a resident of Griftu testified that on 2nd February 2020 he was at Malkaguf when he received a call that his wife who informing him she was unwell. At Malkaguf center, he saw the appellant and asked him for a lift. He had no money to pay for fare. He did not have any luggage. He only had his phone.

34. At Malkaguf barrier the vehicle was searched. They proceeded with the journey. At the Masalale barrier, they found 3 police officers. One of the police officers argued with the driver. They were asked to alight and lie down. The officers assaulted them. They did not see the officers search the vehicle. A police vehicle came. The police officers had a sack. The officers who had assaulted them told their colleagues that they had recovered the sack from their vehicle. He first saw the sack with the police. He conceded that he did not inspect the vehicle while boarding. He did not see the luggage while boarding the vehicle

35. DW4 Abdikadir Abukar Omar brother to DW1 corroborated DW1’s testimony. He told the court that their brother was unwell. DW1 was called by their brother to take care of his livestock. On February 2, 2020 DW1 came back to Malkaguf center and informed him that he wanted to travel back to Griftu. DW1 left at around 7:30 p.m. after finding a motor vehicle. The following day he heard that DW1 had been arrested.

36. DW5 Ali Abdi testified that on the material day he was with the appellant. Three persons came wishing to hire a motor vehicle. The appellant drove the motor vehicle. The co-accused were not with the appellant at Griftu.

37. DW6 Abdullahi Ahmed Sori corroborated the testimony of DW3, that on 31st January 2020 DW3 left Griftu and traveled to Malkaguf riding on a motorcycle KMDS 526D. DW3 had gone to the pastures where their livestock was grazing in the company of Yussuf Sugow. He came back from the interior part of Malkaguf center on the evening of February 2, 2020. While in Malkaguf DW3 received information that his wife was unwell. He left for Griftu. He started his journey on a motorcycle; however, it developed mechanical problems. He returned it to Malkaguf and left it at their home. At around 7:30 p.m. he told him that he had found a motor vehicle.

38. In convicting the appellant, the trial court held as follows;“the 2nd accused had been driving the motor vehicle for a while before the arrest. The 2nd accused seem to suggest that he did not know what was in the motor vehicle. As a driver of the motor vehicle the 2nd accused was solely responsible for what was in the motor vehicle. Being in control of the motor vehicle meant that he was supposed to check and confirm what was inside that motor vehicle. I do not agree with the 2nd accused that his sole responsibility in the motor vehicle was to drive the same.From his defence the 2nd accused insinuated that the police planted the exhibits on him. However, he admitted that he had no issue with the officers they found at Masalale roadblock. Therefore, the officers had no reason to frame him. The 2nd accused further testified that he did not search the motor vehicle before driving the same. Some of the exhibits were found on the motor vehicle’s dashboard. That did not require any searching.From the above I find that the 2nd accused did not create a reasonable doubt in the mind of the court. He was aware of what he was carrying in his motor vehicle. The 2nd accused did not produce a license allowing him to be in possession of a firearm and ammunition. Also, 2nd accused did not have any lawful excuse to have in his possession 3 swagger sticks belonging to the government of Kenya….”

39. The appellant confirms that he had been with the vehicle as its driver for a month. He appears to have operated the same as a taxi. He dropped passengers and picked the 1st and 3rd accused on the way. One had a black bag and another carried nothing. This scenario has been corroborated by the co-accused. To this extent the court believes the evidence of DW1& DW3. As one in possession of the motor vehicle the responsibility of what is kept in the vehicle squarely lay with the appellant. Indeed, as a driver he could not have missed to see any item that may have been placed on the dash board of the vehicle. Secondly the sack was hidden below the driver’s seat and he failed to explain. The court sees no reason why the officers manning the roadblock would have kept a dismantled gun, and swagger canes and why they would plant the same on the appellant and his co-accused.

40. The court agrees with the finding of the trial court to the extent that the prosecution had proved beyond all reasonable doubt that the appellant was in possession of the dismantled gun, and the swagger canes.

41. As relates to the charge sheet the appellant argues that the provisions of section 4 of the Firearms Act are descriptive and do not create an offence. The appellant was charged under the provisions section 4 (A) (1) (a) of the Firearms Act, the same provides as follows;4A. Offences relating to specified firearms(1)Notwithstanding section 4, any person who—(a)is found in possession of any of the specified firearms without a licence or permit or other lawful justification; or(b)being licensed to possess, hold, trade in or otherwise have custody of any of the specified firearms, ammunition or parts of such firearm or ammunition hires or otherwise unlawfully permits another person to take possession of or use that firearm or ammunition to advance the course of organized criminal activity, commits an offence under this Act and is liable to imprisonment for life.

42. The above provisions clearly create the offence and the sentence imposed for such an offence. The charge sheet was therefore not defective.

43. The appellant urged that the prosecution case was fraught with inconsistencies and contradictions. The appellant contended that the evidence of PW1, PW2, PW3, and PW5 were not consistent as to who recovered which particular part of the gun from the motor vehicle. Upon considering the evidence of PW1, PW2, PW3 and PW5, the court finds that the testimonies of the prosecution witnesses were consistent with insignificant variation from one witness to the other and which do not go to the core of the evidence. The witnesses were not expected to give uniform testimonies as if they had rehearsed or were couched.

44. On identification and lack of identification parade. The courts in Kenya have consistently relied on the English case of R v Turnbull &others(1976) 3 ALL ER 549, which has a detailed discussion on the factors that ought to be considered on identification. The court there said:“.... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”See also; George Mbaya Githinji v Republic [2019] eKLR

45. The appellant was apprehended at night. PW1 and PW2 were present at the time of the arrest. PW1 did not positively identify the appellant and his co-accused. PW2 however positively identified them. He stated that he could identify them since he had torchlight during the time of the arrest. PW3 also testified that he saw the appellant and his co-accused at the scene. Between the time of the arrest, the time investigations were done and the time the appellant was charged, the evidence was consistent. Since two of the officers saw the suspects well and could identify them the identification was therefore proper and there was no need for an identification parade.

46. As to the testimony of a deceased witness i.e. PC Mosama and whether the same violated the provisions of section 33 of the Evidence Act. Section 33 provides as follow;“Statement by deceased person, etc., when Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases— “(b)made in the course of business when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;”

47. In this case, there was no statement from PC Mosama that the prosecution sought to rely on. They relied on information by PC Mosama’s colleagues of his role at the roadblock and in apprehending the appellant and his co-accused. The court finds therefore that there being no statement made by the deceased the provisions of section 33 of the Evidence Act were insignificant in this regard. PW1 and PW2 was direct evidence. They were both present when PC Mosama recovered some parts of the gun

48. As to whether the trial magistrate failed to consider that no proper inventory was done, the items allegedly recovered were components of a gun hence could not sustain the first count. The inventory of the items collected was presented as Exh 10. The evidence of the firearms examiner was to the extent that if the components are put together they made out a gun that was able to discharge the ammunitions retrieved from the appellant. The components therefore formed a firearm within the meaning of the Firearms Act. The court finds the conviction was safe.

49. The appellant has also appealed on sentence. Section 4 provides a penalty of life imprisonment. The appellant was sentenced in concurrent sentences all totaling to seven years’ imprisonment for the three offences. This court finds the sentence to proper and just in the circumstances and wishes not to disturb the same.

50. The upshot of this determination is that the appeal lacks merit and the same is hereby dismissed.

DATED SIGNED IN GARISSA THIS 10TH DAY OF JUNE 2022ALI-ARONIJUDGE