https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7083

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL APPEAL NO. E121 OF 2024** **PATRICK MARIEN NDIWA ………………………............ APPELLANT** * **VERSUS -** **REPUBLIC ………….……………………………………….. RESPONDENT** **(Being an appeal from the judgment, conviction & sentence of Hon. R.K. Langat PM delivered on the 5/9/2024 in Sirisia PMC in Criminal Case No. E218 of 2024)** **J U D G M E N T** 1. The appellant and 3 others not before this court were charged with multiple offences relating to firearm possession. 2. In **Count 1**, the appellant and his co-accused were each charged with **possession of firearm contrary *to section 8 4 A (1) (a) of the Firearm Act.*** The particulars of the charge were that on the 7/4/2024, at Banandega Forest, Kopsiro location, Kopsiro sub-county within Bungoma County, the appellant without reasonable excuse had in his possession a firearm make AK 47 rifle serial number UE 68921998 without a licence. 3. In Count 2, the appellant and his co-accused were each charged with **being in possession of specified ammunition without a firearm certificate** **contrary to section 4 (2) (a) as read with section 4 (3) (a) of the Firearm Act**. The particulars of the charge were that on the 7/4/2024, at Banandega Forest, Kopsiro location, Kopsiro sub-county within Bungoma County, the appellant without reasonable excuse had in his possession 5 rounds of ammunitions of 7.62mm special without a licence. 4. In **Count 3**, the appellant and his co-accused were charged with the offence of **conspiracy to commit a felony** **contrary to section 393 of the Penal Code,** the particulars being that on the 7/4/2024, at Banandega Forest, Kopsiro location, Kopsiro sub-county within Bungoma County, the appellant and his co-accused were jointly found in Banandega Forest conspiring together to commit a felony namely robbery with violence. 5. In Count 4, the appellant and his co-accused were charged with the offence of **preparation to commit a felony contrary to section 308 (1) of the Penal Code**. The particulars of the offence were that on the 7/4/2024, at Banandega Forest, Kopsiro location, Kopsiro sub-county within Bungoma County, the appellant and his co-accused were jointly found armed with a dangerous weapon namely AK 47 rifle in circumstances that indicate that they were so armed with intent to commit a felony namely robbery with violence. 6. The appellant pleaded not guilty to all 4 charges, and the matter proceeded to trial. In its judgment dated 5/9/2024, the trial court found that the prosecution had proven its case against the appellant only in Counts 1 and 2. The court acquitted the appellant and his co-accused of the charges brought against them in Counts 3 and 4. 7. The trial court subsequently sentenced him to 10 years’ imprisonment on each count of conviction, with the sentences to run concurrently. 8. Dissatisfied with that decision, the appellant filed his petition of appeal dated 17/9/2024, raising eight (8) grounds of appeal, all of which can be condensed into one: thatthe trial magistrate erred in both law and fact in convicting the appellant despite the fact that the prosecution failed to prove their case beyond reasonable doubt. 9. The appeal was disposed off by way of submissions which I have considered. 10. The appellant filed two different written submissions in support of his appeal, one dated **19/11/2025** and the other dated **11/12/2025**. 11. In the submissions dated 19/11/2025, the appellant reiterated that the evidence adduced was insufficient to sustain his conviction and, as such, the sentence imposed on him ought to be set aside. 12. In the submissions dated 11/12/2025, the appellant raised the issue that he was not informed of his right to legal representation, as entrenched in the Constitution and reinforced by the Court of Appeal, though this was not an issue that had been pleaded in his petition of appeal. 13. On its part, the Respondent submitted that it had proved the two offences brought against the appellant beyond a reasonable doubt. The Respondent, however, conceded that the trial court failed to comply with Article 50(2)(h) of the Constitution and, considering the appellant’s weak, unsworn defence vis-à-vis the evidence it had presented, that if the court were persuaded otherwise, it should order a retrial. 14. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32*.*) 15. Pw1, 2nd Lieutenant Elijah Musyoka, testified that on 6/4/2024, whilst at Minjila Barracks, they received a tip that one Edward, the 2nd accused before the trial court and whom they had been searching for, was at the local market. They proceeded there, arrested the said Edward, and interrogated him, as they had information that he had a firearm. Edward led them into the forest, where he alleged he had hidden the firearm. They found 4 people at the scene, where there was a makeshift structure, and one of the individuals was in possession of a firearm, whilst the rest had machetes. Pw1 identified the individual in possession of the firearm as the appellant. 16. That they subdued the people at the scene, and the appellant surrendered his firearm, an AK47 rifle with serial number UC G892 1998. That the said rifle had 1 magazine containing 5 rounds of ammunition. It was his testimony that they arrested the individuals, took them back to the military camp, and then to Kipsigon Police Station. 17. In cross-examination, Pw1 testified that they found the appellant outside, that he then entered the makeshift structure and emerged with a gun, and that when he saw he was surrounded by many officers, he raised his hands. Pw1 denied assaulting the appellant and stated that the appellant already had a scar on the head prior to his arrest. 18. Pw2 No. 78649 Sgt. Benard Komba testified that on 6/4/2024, one Edmond Kipruto gave them a tip-off and led them to the forest. They were 11 officers. They arrived in the middle of the forest, where they found a bamboo house and 4 people. One of the people they found there rushed into the house and emerged with a rifle. 19. Pw2 testified that he instructed the individual to surrender and that the individual did so. He further testified that the individual was the appellant, that the rifle was an AK47 with serial number UC6892-1998, and that it had 5 bullets. He reiterated that the appellant was the one holding the gun. 20. In cross-examination, Pw2 testified that there were 12 officers, 4 of whom entered the house. He reiterated that the appellant took the gun and came out of the house, and that they warned him not to fire. 21. Pw3 No. 235253. Chief Inspector Reuben Tett, who is attached to the Forensic Ballistic Section at the DCI Headquarters, testified regarding the report he prepared after receiving several exhibits from Chief Inspector Protus Malaba. He stated that the exhibits were an AK47 rifle, serial number 68921998 (Exhibit A), 5 rounds of ammunition (Exhibits B1 – B5), and one box magazine (Exhibit C). He further stated that, following his examination, he found that Exhibit A was a 7.62mm-calibre rifle designed to discharge Exhibits B1 – B5, and that it was in good condition. He also found that Exhibits B1 – B5 were ammunition, that Exhibit C was a box magazine with a maximum capacity of 30 rounds, and that it was in good condition. As a result of his examination, he formed the opinion that Exhibits marked A, B1 – B5, and C were a firearm and rounds of ammunition. 22. During cross-examination by the appellant, he gave evidence that he was not the arresting officer and, as such, could not say whether the gun belonged to him. 23. Pw4 No. 294341, PC George Omango, the Investigation Officer, testified that he was assigned the case on 8/4/2024. He further testified that his investigations established that one Edmond Kipruto Boiyo had led Army officers into the forest, where the appellant was found in possession of a gun. The gun and ammunition were subsequently handed over to the police. In cross-examination, Pw4 stated that he did not arrest the appellant. 24. When placed on his defence, the appellant gave a sworn statement that he was arrested on 7/4/2024 while herding cows. The appellant alleged that the gun was planted in his house, stating that the officers entered his house and came out with a gun after 30 minutes. He further stated that if he had initially had the gun, he would have used it. 25. It is based on this evidence that the trial court convicted and sentenced the appellant on both counts whilst discharging his co-accused. **ANALYSIS AND DETERMINATION** 1. As a preliminary issue, this court has been called to consider whether the appellant’s right to legal representation was infringed by the trial court in its failure to inform him of the same. 2. Article 50(2)(h) of the Constitution guarantees the right to legal representation at state expense where substantial injustice would otherwise result. Section 43 of the Legal Aid Act, 2016, mandates that courts inform accused persons of this right. 3. In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal stated that: - ***“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.”*** 1. In Republic v Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that “in accordance with the language of the *Constitution*, this particular right is not open ended. It only becomes available “*if substantial injustice would otherwise result*”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “*if substantial injustice would otherwise result….*” and that “*the protection embedded in Article 50 (2) (h) goes beyond capital offence trials*”. 2. Accordingly, it should be a standard procedure for the accused to be informed prior about their right to legal representation. This is mandated by the *Constitution*. 3. In the present case, it is unclear from the record whether the trial court made the Appellant aware of these rights. Nevertheless, although these issues were not addressed in the trial court, the Appellant's cross-examination of the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, arose from the trial court's failure to inform the Appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. Therefore, the trial court's omission in notifying the Appellant of his rights should not serve as grounds for invalidating his trial. 4. The appellant impugned his conviction and sentence on the ground that the prosecution failed to present sufficient evidence to prove its case beyond reasonable doubt. 5. On count I, section 4A of **the**[***Firearms Act***](https://new.kenyalaw.org/akn/ke/act/1953/40) provides as follows: **4.A 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.** **(2) For the purposes of this section, “specified firearm” means any of the following firearms—(a)AK 47;** 1. The evidence presented by both Pw1 and Pw2, who were at the scene, was that it was the appellant who, upon seeing them, rushed into the house and came out with a rifle. In his own testimony, the appellant admitted that the house was his; however, he sought to raise a defence that the said gun had been planted therein, which contradicted his testimony that he was arrested whilst herding cows. 2. The rifle recovered from the appellant was identified by Pw3 as an AK47 and found to be in good working order. In my view, the evidence presented by the prosecution proved beyond reasonable doubt that the appellant was the person found in possession of the rifle. The trial court cannot be faulted for finding that the prosecution had laid down sufficient evidence to prove their case with respect to count I. 3. On the second, count the appellant was charged with the offence of being in possession of ammunition without a firearm certificate contrary to section 4 (2) (a) as read with section 4 (3) (a) of the *Firearm Act.* The relevant sections provide as follows: ***“2) If any person—*** ***(a)purchases, acquires or has in his possession any firearm or ammunition without holding a firearm certificate in force at the time, or otherwise than as authorized by a certificate, or, in the case of ammunition, in quantities in excess of those so authorized; or*** ***(b)fails to comply with any condition subject to which a firearm certificate is held by him, he shall, subject to this Act, be guilty of an offence.*** ***(3) Any person who is convicted of an offence under subsection (2) shall—(a)if the firearm concerned is a prohibited weapon of a type specified in paragraph (b) of the definition of that term contained in section 2 or the ammunition is ammunition for use in any such firearm be liable to imprisonment for a term of not less than seven years and not more than fifteen years”*** 1. Further evidence from Pw1 showed that, upon his arrest, the appellant was found in possession of 5 rounds of ammunition. This evidence was corroborated by Pw2 and by the ballistic expert’s evidence. According to the ballistic report, exhibits B1 – B5 comprised 5 rounds of 7.62mm ammunition, each live, and 2 rounds were selected at random and successfully test-fired in the AK 47 rifle. In my view, the prosecution proved the offence under the second count. 2. The appellant’s defence was that the gun was planted in his house by the arresting officers and that he was arrested while herding cows. I have considered the appellant’s evidence; however, the prosecution case was watertight. Accordingly, I find that the appellant’s conviction was proper. 3. As regards the sentence, I have considered the sentence imposed by the trial court in relation to the conviction, and I find it lawful. The trial court took into account his mitigation and his status as a first offender before imposing the sentence. I therefore see no reason to interfere with the subordinate court’s ruling on the sentence. 4. The upshot of the above is that I find that this appeal lacks merit and I dismiss it. **Dated, signed and delivered virtually this 7th Day of May 2026.** **R.E. OUGO** **JUDGE** **In the presence of:** **Appellant in person** **Miss Matere For the Respondent** **Miss Nanzushi For the Appellant** **Wilkister C/A**