[2009] KEHC 490 (KLR)
The court found that Section 22 of the Firearms Act does not create an offence, and therefore the convictions for possession of firearm and ammunition could not stand. Furthermore, the court determined that the identification evidence presented by the prosecution was unreliable, as the witnesses did not clarify...
Source-derived case information.
- Citation
- [2009] KEHC 490 (KLR)
- Parties
- Appellant: Peter Maina Kabutu; Appellant: Peter Gitonga Matu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 134 & 147 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; sentences set aside; appellants to be set free unless otherwise lawfully held
- Legal Topics
- Capital Robbery, Firearms Possession, Identification Evidence, Appeal Against Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Maina Kabutu
Appellant
Peter Gitonga Matu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the convictions for capital robbery and possession of firearm and ammunition were sustainable.
- 2 Whether the identification evidence was reliable and sufficient to support the convictions.
- 3 Whether Section 22 of the Firearms Act creates an offence.
Ratio Decidendi
The court found that Section 22 of the Firearms Act does not create an offence, and therefore the convictions for possession of firearm and ammunition could not stand. Furthermore, the court determined that the identification evidence presented by the prosecution was unreliable, as the witnesses did not clarify whether they identified the appellants at the time of the robbery or after their arrest. The court concluded that the convictions for capital robbery and possession of firearm and ammunition were unsafe and could not be allowed to stand. As a result, the appeals were allowed, the convictions quashed, and the sentences set aside.
Court Disposition
appeal allowed; convictions quashed; sentences set aside; appellants to be set free unless otherwise lawfully held
Orders
- The appeals are allowed.
- All convictions are quashed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Appeal 134 & 147 of 2008
(From original conviction and sentence in Criminal Case No.906 of 2006 of the Principal Magistrate’s court at Molo – J. OSEKO, SPM)
PETER MAINA KABUTU.…………..………1ST APPELLANT
PETER GITONGA MATU…………………..2ND APPELLANT
VERSUS
REPUBLIC…………………………………..….RESPONDENT
JUDGMENT
PETER MAINA KAVUTUandPETER GITONGA MATU, the appellants, were upon trial on capital robbery, being in possession of a firearm and ammunition contrary to Section 22 of the Firearms Act convicted and sentenced to death on the capital robbery charged and ten years imprisonment on each of the counts of being possession of a firearm and ammunition. The two imprisonment terms were ordered to run concurrently. They have appealed against all those convictions and sentences.
Section 22 of the Firearms Act does not create an offence. In any case neither the firearm nor the ammunition was found in their possession. They were said to have been next to the vehicle near which the appellants were found. We therefore agree with both the state and appellants’ counsel that the convictions on being in possession of a firearm and ammunition cannot stand. We therefore quash those convictions and set aside the sentences thereon.
The basis of the appellants’ conviction on the capital robbery charge was that they were found next to the get away car which had crushed and landed in a ditch. Their protestations that they had stopped to find out the cause of the car crush were not heeded. PW3 and PW4 who purported to identify them did not say whether they identified them at the time of robbery or later on when they had been arrested. That identification cannot be relied upon.
Taking all these factors into account we agree with the learned state and accused’s counsel that none of the convictions of the appellants cannot be allowed to stand. Consequently we allow their appeals, quash all the convictions and set aside the sentences. The appellants shall be set free forthwith unless otherwise lawfully held.
DATED and delivered this 20th day of November, 2009.
D. K. MARAGA
JUDGE.
W. OUKO
JUDGE.