[2023] KEHC 26515 (KLR)

Otundo v Republic (Criminal Appeal 70 of 2023) [2023] KEHC 26515 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26515 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 70 of 2023

DR Kavedza, J

December 8, 2023

Between

Cleophas Keith Otundo

Appellant

and

Republic

Respondent

(Being an Appeal against conviction and sentence delivered by Hon. M. Maroro PM on 26th June 2022 in Criminal Case No. 766 of 2016 at Kibera Chief Magistrate Court)

Judgment

1. The appellant was charged and convicted for the offence of Loss of Firearm contrary to section 22 of the Firearm Act Cap 114 Laws of Kenya. He was sentenced to pay a fine of Kshs. 10,000/= and to serve one (1) year imprisonment.

2. Aggrieved, he filed an appeal challenging his conviction and sentence. In summary, he challenged the charge sheet as being defective as the appellant was charged with an offence that does not exist under the Firearms Act. He also challenged the totality of the prosecution's evidence, against which he was convicted.

3. As this is a first appeal, I am required to conduct a fresh evaluation of all the evidence and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

4. The prosecution in this regard called seven witnesses to prove their case. No. 68794, Sergeant Robison Naitipa (PW1), testified that he is in charge of charge lines and discipline at Kabete Police Station. On 15/2/16, he assigned a team, including the appellant, PC Otundo, for an operation at Nairobi Area police headquarters. The team, armed with rifles, left at 6:23 pm. At midnight, PW1 received a call reporting the alleged theft of PC Otundo's rifle. Despite a search, the rifle was not found, and the appellant led them to the scene. The stolen rifle was later recovered in Bungoma seven months later. Sergeant Naitipa clarified duty assignments and procedures during cross-examination.

5. Sergeant Samuel Mutwiri (PW3) testified that he was part of a special assignment with the appellant and three other officers. They were initially briefed to go to Pangani but returned to Kabete due to confusion about directions. PC Gunia later led them back to Kabete. After the appellant asked for permission to fuel his car, he intended to return but lost his firearm. Despite a search, the firearm was not found. The appellant surrendered his phone, was interrogated, and taken to Muthaiga, where he was booked and placed in cells. The firearm was later recovered in Bungoma.

6. Chief Inspector Moses Shikuku (PW3) testified that he is in charge of Parklands Police and was previously OCS at Kabete Police Station. On 15/2/2018, he received information from PC Otindo, who claimed he was robbed of his AK47 while heading home after being issued the firearm for duty in the Nairobi Area. PW3 mobilized officers for a search, and went to PC Otindo's residence, but found nothing linked to the alleged robbery. PC Otindo claimed he took the gun home for security reasons, against the procedure. During cross-examination, PW3 acknowledged PC Otindo's previous good conduct, clarified duty assignments, and confirmed not knowing if all officers returned their firearms. Investigations later revealed PC Otindo was not robbed, and the AK47 was recovered from robbers in Bungoma. In re-examination, PW3 reiterated PC Otindo's explanation for taking the gun home for security.

7. PC James Mutunga (PW4) testified that on 15/2/2016, he and the appellant were assigned duties at Nairobi Area Police headquarters but were informed that the special duty was cancelled. They returned to Kabete Police Station around 10:30 pm, and since the duty was cancelled, they dispersed. PC Mutunga returned his gun the next morning and emphasized that it was against procedure to go home while on duty. He clarified that he was not with the appellant when the gun was lost and noted the impossibility of another officer leaving him with their gun during cross-examination.

8. Chief Inspector Robert Ojwang (PW5) testified that he assisted officers from the Nairobi flying squad in tracing a suspect, Naftali Munjeri, who was believed to possess an AK47 allegedly robbed from a police constable at Kabete Police Station. Naftali was fatally shot during a chase, and the AK47 with the same serial number sought by the flying squad was recovered. Chief Inspector Ojwang stated that Naftali was a known robber, and tracking technology was used to locate him. During cross-examination, he clarified that he was not investigating the firearm and didn't know how Naftali obtained the gun.

9. Chief Inspector James Onyango, a firearm examiner at DCIO's office, informed the court that he examined exhibits, including an AK47 rifle (labeled "A"), a magazine (exhibit "B"), and 23 rounds of ammunition (labeled C 1-23). He verified whether Exhibit A could fire, if C1-23 could be used in Exhibit A, and if Exhibit A was linked to any other offenses. He confirmed exhibit A as a Chinese-made AK47 assault rifle in good condition. Testing it with three rounds from C1-23 confirmed it as a firearm and ammunition under Kenyan law. The magazine B was identified as a storage and feeding device for AK47. Comparative analysis with unresolved cartridge cases showed no connections. A report, dated 17/3/2017, was submitted to court. During cross-examination, the Chief Inspector affirmed his role and acknowledged awareness of the charges.

10. Chief Inspector Joseph Gichuki (No. 234102), the investigating officer, testified that he was instructed to investigate the loss of an AK47 reported by the appellant on 24/2/2016. The firearm, issued to PC Otundo, had not been returned. On 28/9/2016, flying squad Bungoma informed him they recovered the gun after a robber was shot. On 30/9/2016, the firearm was handed over, and its serial number matched. He received a magazine with 23 rounds and prepared a memo to be sent to the government examiner. During cross-examination, Pw7 noted the lack of evidence establishing a robbery and suggested the appellant could have raised an alarm if attacked.

11. In his defense the appellant, under interdiction, testified that on 15/2/2016, he received a duty call at 5:00 pm, changed at Kabete Police Station, and obtained an AK47 for an operation in the Nairobi Area. Due to logistical issues, the operation was cancelled, and he returned to Kabete at 11:00 p.m. Assigned patrol duties at Kangemi, he went home, but on his way back to the station, armed individuals blocked the road, robbed him of his rifle, and attempted to set his car on fire. The stolen rifle was later recovered in Bungoma after a robbery. During cross-examination, the appellant defended his actions, emphasizing the unique and unexpected nature of the scenario and denying collusion with the robbers.

Analysis and Determination 12. I have considered the submissions of both parties and the record and find that the only issue for determination is whether the appellant’s conviction was rightful and lawful. The appellant in support of his appeal submitted that the charge sheet suffered a fatal defect, given its failure to aver the paramount element of the offense for which the appellant stands convicted. It was submitted that the crux of the matter regarding the offense stipulated in section 22 of the Firearms Act lies in the omission to report the loss of the firearm itself, as opposed to solely the loss thereof. The appellant was charged with the offense of loss of a firearm contrary to section 22 of the Firearms Act. The summarized particulars indicated that on the material dates, the appellant lost a firearm AK 47 rifle serial number 23016048 loaded with 30 rounds of ammunition, which were issued to him by the Kenya Police Service (KPS).

13. Section 22 of the Act states as follows:“Any person having possession of a firearm or ammunition, whether or not he holds a firearm certificate therefor or is entitled to have possession thereof without holding a firearm certificate, shall, if the firearm or ammunition is lost, stolen or destroyed, report the loss, theft or destruction as soon as possible after its occurrence to the police officer in charge of the nearest police station, and if he fails to do so, shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding ten thousand shillings or to both.”

14. It is clear from the reading that the offence under Section 22 of the Firearm Act is failing to report loss of a firearm. The question that this court is therefore called upon to answer is whether the appellant indeed failed to report the loss. As submitted by counsel for the Appellant, the National Police Service Standing Orders (SSO), the Firearms Act, and the National Police Service Act contain provisions on how to manage and secure NPS's stockpiles of arms and ammunition. The NPS Standing Orders are particularly important in this regard, as they include provisions on arms and ammunition procurement, distribution, transportation, storage, and on-charge issuance and collection. Chapter 14, section 19 of the Police Standing Orders provides the report to be followed in case of the loss of a firearm. It states:1. In the case of loss of a firearm or ammunition, it shall be reported immediately to the Officer-in-Charge of the nearest Police Station.2. After a report of loss of a firearm is made pursuant to sub-paragraph (1), the Officer-in-Charge shall immediately cause to be investigated the circumstances for such loss and endeavour to recover the lost items.3. Whether recovered or not, The Officer in Charge shall undertake an inquiry for such loss and a copy of the inquiry file submitted to the respective Service Headquarters through the County, Formation Commander, and the Central Firearms Bureau within ten days of discovery of the loss.

15. It was the trial court's conclusion that the appellant didn't report the loss of his firearm. However, the evidence on record, found robust evidence supporting the appellant's prompt report. Prosecution witnesses, including Pw1, Pw2, and Pw3, testified that the appellant reported the incident immediately. Pw1 received a midnight call from OCS Kabete Chief Inspector Shikuku informing him of the robbery, and they, along with other officers, searched the scene and the appellant's house. Although there was no OB Entry, the absence of a formal record doesn't negate the reality that the appellant promptly reported the incident, questioning the validity of asserting otherwise and casting doubt on the diligent efforts of the responding officers.

16. The respondent while also relying on section 19 of the Police Standing Orders, added that the appellant’s actions were contrary to section 92 (2) of the National Police Service Act No. 11 (A) of 2011 which provides thus;“Notwithstanding subsection (1), any officer who pawns, sells, loses by neglect, makes away with or willfully or negligently damages any firearms, ammunition, accouterment or uniform commits an offence and is on conviction, liable to imprisonment for a term not exceeding five years, or a fine not exceeding five hundred thousand,"

17. The respondent in their submission attributed the loss of the firearm to the appellant, citing his awareness of the risks associated with carrying a firearm home late at night. The respondent further raised suspicion of the alleged robbery incident from the selective theft of only the firearm, excluding valuables like money or a phone. In the appellant's defence, he mentioned discovering his jacket and phone, dropped after the robbery, explaining their non-theft. Additionally, the assailant's unsuccessful attempt to start his car suggests a broader intention beyond firearm theft.

18. The prosecution further failed to show how the appellant’s allegations of being robbed were false. Pw7 merely stated that after investigations he did not establish any robbery. He went further to state that if indeed the appellant was robbed, he could have raised an alarm and those at the station would have heard him and gone to his rescue. To answer this, the appellant in his statement stated that he was ordered not to shout so he complied as he was at gunpoint. The circumstances surely would not allow him to shout for help at the risk of being shot.

19. In the upshot of the foregoing analysis, I find that the prosecution failed to prove their case to the required standard thus rendering the appellant’s conviction unsafe.

20. The appellant’s conviction is set aside and the sentence imposed quashed. He is hereby set at liberty unless otherwise lawfully held.It is so ordered.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF 2023. _______________D. KAVEDZAJUDGEIn the presence of:Kiragu for the StateAppellant PresentNaomi/Nelson C/A