https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11014

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KABARNET** **CRIMINAL APPEAL CASE NO.E019 OF 2025** PAUL LESIAPA LELEMIT........................................................ APPELLANT VERSUS REPUBLIC ......................................................................RESPONDENT ***(An appeal against the conviction and sentence from the Judgment of Hon P. KOSKEY (SPM) delivered at Kabarnet Magistrate’s Court Criminal case No. E162 OF 2023 on the 24th Day of January,2024).*** **JUDGMENT** 1. The appellant, **Paul Lesiapa Lelemit** was charged with two counts: Count one: being in **Possession of a firearm without Firearm certificate** contrary to **Section 4A (a) of the firearms Act Cap, 114 Laws of Kenya.** Particulars of the offence were that on the 9th May, 2023 at Loboi junction Marigat Location, Baringo South Sub-County within Baringo County without firearm certificate was found in Possession of a specified firearm an AK 47 assault rifle S/No.1171486. Count two: being in **Possession of ammunitions** contrary to **Section 4A 1(b) of the Firearm Act Cap.114 Laws of Kenya**. Particulars of the offence is that on the 9th day of May, 2023 at around 1500 hrs. at Loboi junction Marigat, Marigat location, Baringo south Sub-County within Baringo County was found being in possession of five (5) live ammunitions of caliber 7.62 by 39 mm in circumstances which raised reasonable presumption that the said ammunitions was intended to be used in a manner prejudicial to public order. 1. On 24th May, 2023 he pleaded not guilty to the charge. 2. On 24th January, 2024 the learned trial magistrate found him guilty – and made the following finding:- *The accused person has not disputed having taken police officers to his house, the evidence of PW1, PW2 and PW4 is that they participated* *in the recovery. I find that the evidence tendered overwhelmingly shows that the recovery of the AK47 rifle and the 5 rounds of ammunition were done in the accused’s house.* *On the second issue of whether the AK 47 rifle is a specified firearm that requires a licence/permit. I have considered the report of the ballistic expert PW3. He found that the AK 47 rifle is capable of being fired and is a firearm in terms of the* ***Firearms Act Cap.114****.* *On the fourth issue, the evidence led by the prosecution does not show that the accused person was licensed to possess the 5 rounds of ammunition and that he abused the licence/permit by using the ammunition for criminal activity. The evidence led does not prove the ingredients provided under* ***Section 4A 1(b) of the Firearm Act****. For the second count, the accused person ought to have been charged under the offence created under* ***Section 4(1) as read with 4(2) (a)*** *and* ***(3) (a) of the Firearms Act****. A similar scenario obtained in the case of* ***Elijah Kipkenei Kimageal –v- Republic [2018] eKLR****.* *I do not find on the other hand that the prosecution has proved the guilt of the accused person beyond reasonable doubt on the first count of being in possession of a firearm without a firearm certificate and is convicted accordingly under* ***Section 215 of the Criminal Procedure Code.*** 1. On 7th February, 2024 the accused person was sentenced to 15 years imprisonment. 2. Aggrieved, the appellant filed this appeal on the following grounds:- 3. *THAT the Learned trial magistrate erred in both law and fact by sentencing the Appellant* ***to serve 15 years imprisonment*** *yet failed to take into consideration all the ingredients of the offence were not proved beyond reasonable doubt.* 4. *THAT the Appellant is aggrieved that the trial court shifted the* ***burden of proof to him favouring*** *the prosecutions side hence making final conclusions erroneous.* 5. *THAT the trial magistrate failed both in law and fact as it failed to analyze and evaluate that the element of the alleged offence was not proved.* **Appellant’s submissions**. 1. In his handwritten submissions the appellant argued three grounds:- 2. *Defective charge sheet.* 3. *Shoddy investigations.* 4. *“Lack of Basis.”* 5. On the 1st ground, he referred the court to page 3 of the Record of Appeal – He submitted that the case for the prosecution as presented by the police officers was that the Inspector Onyango of DCI requested both PW1 and PW2 – to assist him to arrest a suspect of robbery with violence at Marigat town – and that they arrested him at Aljazeera Electronics shop buying a cover for his mobile phone. That when he was arrested, he was not found in possession of any firearm. 6. His argument is that the charge sheet says he was found in Loboi junction while in possession of a firearm AK 47 Assault rifle yet the evidence is contrary to this assertion in that when he was arrested at the shop he was not in possession of any firearm. He relies on **Yongo –v- R [1983] eKLR** for the proposition that where a charge is defective either in substance or in form, and the error is not curable under **Section 382 of the Criminal Procedure Code**, the conviction based on it cannot stand. He relies on **Section 134 of the Criminal Procedure Code** and argues that defect goes to the root of the charge. It is also his argument that that the court will find that the charge was a fishing expedition, a procedural short cut by the prosecution – he relies on **Okethi Okale & others –vs- Republic [1965] EA 555** on the prosecutions, burden to prove their case. 7. On the 2nd ground he submits that the case for the prosecution was that there was a robbery at Marigat Supermarket where firearms were used – that according to prosecution – CCTV footage captured some evidence and some expended cartridges and bullet heads were collected from the robbery scene at Marigat, one cartridge was recovered at Marigat Supermarket in Marigat. 8. The appellant submits that there was no evidence of any report of any such robbery with violence/use of arms in Marigat – that no complainant was availed in court to demonstrate that indeed such an incident occurred to warrant his arrest as a suspect of the alleged series of robberies in Marigat town. He contends that the police were on a fishing expedition. 9. On her 3rd ground – he relies on **Section 89 of the Criminal Procedure Code** and argues that the **Section 89(1)** that there was no complaint that he was involved in any robbery, no report had been made against him anywhere that he was a suspect in the alleged robberies. 10. He submits that the investigating officer made false claims that he was assigned to investigate **a case of robbery with violence at Marigat Supermarket** – yet he did not produce any O.B of the alleged robbery report, did not visit, the scene or identify the culprits. Nor was there any evidence of complainants. 11. The appellant relies on **Okeno –vs- R. [1972] EA 32** for the proposition that the court should not rely on investigations that are marred by such deficiencies; also, on **Abdi –v- R Criminal Appeal E004 of 2022 [KEHC 13025 (KLR).**Further that the trial court failed to reconcile the discrepancies presented by the lack of an O.B. for alleged robbery and the alleged investigations of the said/alleged robbery. 12. That this failure resulted in a violation of the principles of due process as enshrined in our legal system; and the requirements of **Section 124 of the Evidence Act** which require that evidence be corroborated, reliable and consistent. 13. The appellant submits that prosecution failed – and that he should be acquitted. **Prosecution’s Submissions**. 1. The prosecution submits that the appellant was found in possession of the AK 57 rifle, and found guilty of the offence, convicted and sentenced to 15 years imprisonment. It is submitted that the appeal is opposed strongly and the court is urged to sustain the conviction and the sentence. That it is the accused person who led the police to the recovery of the said rifle. 2. Relying on **Bernard Kimani Gacheru –v- R [2002] eKLR and S Vs Malgas (1) SACR 469** on when the appellate court can interfere with the sentence of the trial court, this court is urged to find that that no basis has been laid for the same – that the sentence of 15 years imprisonment is commensurate with the offence – taking into account the gravity of the offence – the proliferation of the unlawful fire arms. 3. The duty of the 1st appellate is settled in numerous authorities – **Okeno –v- R**. to re-evaluate the evidence before the trial court and draw its own conclusions. 4. According to **PW1 No.250184 PC. David Opondi**, he was attached to Marigat Police Station on 9th May, 2023, and so was **No.260056 PC. Gilbert Bett** when they were requested by Inspector Onyango of DCI to assist in the arrest of a suspect of a series of robberies in Marigat. They found him at Aljazeera shop at Marigat – took him to Marigat Police Station, then he took them to a rental house at Loboi junction – a plot where there were 5 rooms. That he opened the room for them and from under his bed they recovered an AK 47 gun in a white sack as per PW1 – it had a magazine with 5 bullets. He said they also found a blue Masai sheet, shoes red and black in colour, a black jacket – they took him to his home in Kiserian but did not recover anything there. 5. On cross-examination he told the court that accused person took them to the homes of other suspects where they recovered one bullet. On re-examination, he said the one bullet was recovered from an abandoned house. 6. On his part PW2 said that they recovered an AK 47 serial number 1171486 with a bold head serial number 1486-that it had a magazine with 5 rounds of ammunition wrapped in manilla paper – that they also found blue Masai sheet with yellow and black stripes, black jacket, red and yellow shoes worn by one of robbers captured on CCTV footage while robbing one of the supermarkets. 7. On cross-examination he said that the accused was interrogated by other officers in the presence of PW2 – that the accused confessed to having a gun, and voluntarily took them to his rented house at Loboi. He said they did not have a search warrant. He said he could not recall the accused telling them that he was involved in criminal activities with others. He denied that they recovered another bullet from another person. He said may be other officers did. 1. He, on re-examination confirmed that they recovered 5 rounds of ammunitions from the house of the accused, they did not recover any bullet from the house of any other person, that from house of accused’s brother they recovered a motorcycle. 2. **PW4 No.76478 Sgt. Joshua Tobolei** told the court that around **2022-2023 there was a series of robberies, armed gangs, who robbed shops, petrol stations using AK 47 rifles** – that DCI began conducting investigations into the case of some robbed shops at gun point – that these included Marigat Supermarket, shops along Lororo shopping centre, Marigat Inn, Koriema shopping centre. That their investigations narrowed on “9 accused persons before court” and 22 others at large. 1. That on 9th May, 2023 they got a tip off that accused was at a shop in Marigat – He said they arrested accused – who took them to his house in the outskirts of Marigat , that they recovered – AK 47, with a magazine with 5 rounds of ammunitions in a white manilla bag, Masai sheet with green and white lines, with red and white lines, a white red striped rubber shoes ,black jacket. 2. That accused took them to the house of his accomplices – that they recovered the ammunition in the house of one Lemenkey who fled. He said they had collected some spent cartridges and bullet heads from the scene of robbery at Marigat – All these together with the AK 47 rifle and rounds of ammunitions were forwarded to Ballistics, Nairobi – that one cartridge recovered from Marigat Supermarket in Marigat was found to have been fired from the firearm recovered from the accused person – That the people of Merimet Supermarket declined to record statements – they proceeded to charge the accused with these charges because – all the victims did not identify the robbers because they had masked their faces – that since the arrest of the accused person robberies had ceased in Marigat. 3. On cross-examination he said that the robbers covered their heads with Maasai sheets, that he took the shoes, shuka because he expected that the victims would connect the accused person to the robberies. That this was police work and he did not need to inform the chief or village elder - 4. PW3 was the ballistics expert. He received an AK47 rifle, 6 rounds of ammunition, of expended cartridges, 2 fired bullets, 2 bullet fragments. He said the AK 47 was chambered to fire calibre 7.62 X 39 MM. It had serial number 1171486 on its body, and number TT5897 on its bold head. He produced the report, and the Exhibit Memo was produced by PW4. **Analysis and Determination**: 1. I have carefully considered he evidence on record, the submissions by both sides, and the grounds of appeal – 2. **Was the sentence excessive?** 3. **Did the prosecution prove the charge against the accused?** 4. **Was due process followed?** 5. The case for the prosecution was grounded on the allegation that the accused person was arrested as a suspect of the series of robberies within Marigat town between 2022 and 2023. 6. The prosecution produced evidence through the I.O , the exhibit memo as follows: 7. *Exhibit marked* ***“A”*** *is an AK 47 rifle S/No.1171486. Exhibits marked* ***“B-1” “B-5”*** *are live ammunitions.* 8. *Exhibit marked* ***“C”*** *is an empty AK 47 rifle magazine.* 9. *Exhibit marked* ***“M”*** *is a spent cartridge recovered from the scene of robbery with violence incident at* ***Marmat supermarket****.* 10. *Exhibits marked* ***“K-1”*** *–* ***“K-3”*** *are spent cartridges recovered from the scene of robbery with violence incident* ***At Koriema Trading Centre.*** 11. *Exhibits marked* ***“H-1” – “H-4”*** *are spent bullet heads recovered from the scene of robbery with violence incident at* ***Koriema Trading Centre.*** 12. *Exhibit marked* ***“V”*** *is a spent cartridge recovered from the scene or robbery with violence incident at* ***Marigat-Inn Trading Centre****.* 13. *Exhibit marked* ***“L-1”*** *is a live ammunition.* 14. *Exhibit marked* ***“L-2”*** *is a spent cartridge recovered from the scene of robbery with violence incident at* ***Lororo Trading Centre****.* 15. *Exhibit marked* ***“S-1”*** *to* ***“S-3”*** *are spent cartridges recovered from the scene of robbery with violence incident at* ***Sandai Trading Centre.*** 16. The Exhibit Memo stated as follows ;further . **Offence and Section:** Being in possession of a firearm without a certificate contrary to Section 4A (a) of the firearm Act Cap.114 laws of Kenya. **Time, date and place committed** **:** At around **2100 hrs**. on diverse dates between **02/07/2022** and **08/05/2023** within Marigat (Marmat Supermarket, Koriema Trading Centre, Sandai Trading Centre, Lororo Trading Centre and Marigat-Inn Trading Centre). 1. According to this piece of evidence the robberies occurred up to and including the night before the appellant was arrested. But the appellant was not charged with a single 2. charge of robbery with violence. Six scenes of crime, Marmat Supermarket, Koriema Trading Centre, Sandai Trading Centre, Lororo Trading Centre and Marigat-Inn Trading Centre, more than 6 victims of the alleged offence but not a single report at any police station of the alleged robbery? Not even by police officers who may have visited the scenes, who had allegedly recovered the spent cartridges, not a single OB entry? The Exhibit Memo form lists 6 places where the robberies were said to have been committed between 2ndJuly, 2022 and 8th May, 2023 – the day before the accused person was arrested. Accordingly, the Exhibit Memo – the O.B. entry related to this offence is 47/9/5/2023 this is the O.B. for the date the arrest was made 1. The I.O ‘s explanation was that * None of the victims recorded a statement. * All the victims said that they could not identify the robbers because the robbers had masked their faces/or covered themselves with Maasai shukas. 1. The prosecution produced no evidence that the appellant was identified as one of the robbers in any way , to warrant his arrest as a suspect. There was no evidence placed before court to show that the house where the arms were allegedly recovered was that of the appellant. The learned trial court answered that by find that the accused had not challenged that the gun was recovered from his house. With respect the accused had no obligation to prove this fact. It was up to the prosecution to prove that that was the hose of the accused and that the items found there belonged to him. The fact that the accused had denied the charge the onus was for the prosecution to establish the facts . 2. In addition, there items found were alleged to have been seen in CCTV footage of the robbery at one of the Supermarkets . That evidence was not availed to court to establish that allegation, especially because it was alleged that the ballistics expert had established that the bullet that was recovered at the supermarket was shot by the AK 47 that was said to have been recovered from the house of the appellant. 3. According to the ballistics expert only the exhibit recovered from Marmat Supermarket was fired from the AK 47 rifle said to have been recovered from the accused person. The lack of evidence of the alleged robbery at Marmat Supermarket raised the question whether there was any robbery at the said supermarket, and the further question where did the police get that bullet? Consequently, this raised questions about the rest of the alleged recoveries – there was nothing placed before the trial court that there was any robbery in the areas set down in the Exhibit Memo. This gap in the case for the prosecution remained open throughout the trial and was never addressed. Did the prosecution prove beyond a reasonable doubt that they recovered the AK 47 from the accused? 1. The police said that some of the recoveries were connected to a robbery that was captured on CCTV. Shoes, jacket, Maasai sheet . However, the CCTV footage was not produced in court. If indeed the police were placing the appellant at the alleged robbery at the said supermarket – why did they not produce the CCTV footage? Did they investigate the CCTV footage ? The I.O did not testify how the appellant was connected to that the alleged robbery? 2. Other than police witness statements that a gun was recovered there nothing else placed before the court to ties all this together. – * On the recovery of the rifle and ammunition the evidence had some issues . PW1 gave serial numbers of the gun that was recovered together with the number on the bold head – 1171486/1486that is not the same serial number given by the and the ballistics report and the I.O was 11714/TT5897. * The two witnesses said there were 5 rounds of ammunition, the PW4 told the court he recovered 6 live ammunitions. 1. PW1 said there was a bullet recovered from an abandoned house PW2 said no other bullet was recovered – PW4 named the person from whose house they recovered the bullet. Even the colors of the Masai shuka that was recovered, were different for PW1, PW2, PW3 – but what stands out is the fact that the three police officers could not agree on whether they recovered another bullet from somewhere else, and if they did – where that was. This discrepancy may appear menial but it speaks to the entire evidence of the alleged recovery of a gun in the house alleged to be of the appellant. It does not support the prosecution that there was an investigation before the appellant was arrested. 2. The burden remained that of the prosecution – to prove that there were robberies, that appellant was involved, that the house where a gun is alleged to have been found was of the appellant. That the appellant was identifies as a suspect of the alleged robberies. 3. While it is a fact that the danger exists of guns being in the hands of persons not licenced to have them and whose use is for criminal enterprise, any suspects is entitled to due process of the law. In the totality of this case the facts do not add up – and in my considered view, the conviction stands out as being unsafe. 4. The appeal succeeds. 5. The conviction is quashed. The sentence is set aside. The appellant is at set at liberty unless otherwise legally held. **Judgment dated, signed and delivered virtually at Kabarnet High Court on 17th July 2026** **MUMBUA T. MATHEKA** **JUDGE** **In the presence of:** Mr. Koech for the State Appellant present virtually Momanyi: Court Assistant