https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/409

 **REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT AT LAMU** **CRIMINAL CASE. NO. E234 OF 2025.** **REPUBLIC……………………………..…………………………………………..PROSECUTOR** **-VERSUS-** **MOHAMED JUMA ABDALLA……………………….……………...……ACCUSED PERSON** **JUDGMENT.** 1. **BRIEF FACTS.** 2. The accused person is charged with the offences of going armed in public contrary to section 88 of the Penal code. The facts were that on 7/11/2025 at around 1920hours at Wiyoni area without lawful excuse the accused was found armed with a panga and a fimbo in a manner that caused fear to residents around the area. 3. The accused is further charged with being in possession of narcotics contrary to section 3(1) as read with section 3(2)(a) of the Narcotic drugs and psychotropic substances control Act. 4. 2 police officers testified on behalf of the state whereas the accused after being place on his defence gave his sworn testimony and called one other witness. **The Prosecution’s case.** 1. It is the prosecution’s case that on the material day and time PC Iftin Abdile, CPL Mwendo, PC Manani, Katana, Nyachio and Mwangi while on patrol received intelligence that there was a man armed with a panga and fimbo. The police then divided themselves into 2 groups and went to the area and upon arrival found the accused armed as per the intelligence report and he was threatening another person. 2. He was then asked to drop the weapons but he refused and infact threatened to attack the police with the weapons he had and this led to Pc Iftin to shot in the air and that is when he dropped the weapons. The police then moved in to arrest him but he refused to be handcuffed and they had to struggle with him before they finally managed to handcuff him. 3. Pc Iftin then conducted a search on him and in his underwear recovered 4 sachets of bhang. They then escorted him to the station and processed him for court. 6 exhibits were produced in support of the prosecution’s case. **Defence case** 1. The accused in defence stated on the material date and time he was in Wiyoni area but he was not arrested with the panga or weapon and that the cases have just been framed on him. 2. Dw 2 Margaret Manase witnessed the incident and confirms that indeed the accused resisted arrest forcing Pc Iftin to shoot in the air to subdue him but stated that he was not armed with any of the weapons and further that in the struggle in a bid to resist arrest, his kikoi fell and he was left with his underwear but nothing like the 4 sachets were recovered from him. 3. **ISSUE FOR DETERMINATION.** 4. **Whether the accused was armed in public.** 5. **Whether the accused had in his possession 4 sachets of Bhang.** 6. **ANALYSIS AND DETERMINATION.** 7. **Whether the accused was armed in public.** 8. **Section 88** of the **Penal Code, Cap 63 provides as follows:-** **Any person who goes armed in public without lawful occasion in such a manner as to cause terror to any person is guilty of a misdemeanor, and his arms may be forfeited.** 1. **From the above provision of the law, for the offence to crystalize evidence must show that the person was armed, he was armed while in public without lawful occasion and that the manner in which he was armed caused terror to any person.** 2. **It is the prosecution’s case that the accused was armed with a panga and a wooden stick(fimbo) and that at the time of the arrest he was ordered to drop them but he refused and even threatened to attack them with the said weapons. It was further their testimony that the accused was threatening another person. The accused defied the order to drop them down and only did so after 2 shots were fired by Pw 1.** 3. **This person who was threatened by the accused was neither availed as a witness nor evidence availed that a charge of threatening against the accused had been filed.** 4. **Pw 2 did not allude to the fact that the accused was actually threatening another but most importantly the person alleged to have been threatened was not called as a witness.** 5. **This therefore creates a doubt as to what exactly the accused was doing before he was arrested and whether indeed the accused was armed. Dw 2 asserted that the accused was not armed at the moment and that led to him resisting arrest as according to him there was absolutely no reason for his arrest. The accused was charged with resisting arrest and pleaded guilty and sentenced accordingly.** 6. **Dw 2 who corroborates the evidence of Pw 1 in terms of the arrest and shooting incidences asserts that the accused was not armed and that she did not understand why the accused was being arrested. The prosecution ought to have pursued the issue further so as to test the veracity of her testimony especially on the issue that the accused was not armed but this was not done. Having heard the witness I find no reason to doubt her and having found a doubt as to the narration by the prosecution witnesses especially as regards the person who was being threatened and who was not mentioned. I am inclined to believe the narration by the defence.** 7. **Consequently, having been stated by the defence that the accused was not armed, I do find that indeed the accused was not armed with the weapons produced in exhibit. Count 1 therefore fails on that account.** 8. **Whether the accused had in his possession 4 sachets of Bhang.** 9. **It is stated Pw 1 that the accused had the 4 sachets of bhang in his underwear which was blue in colour. The accused and his witness deny this vehemently.** 10. **From the evidence of Pw 1 and 2 it is not stated where in the underwear where the 4 sachets were retrieved from. Ordinarily and from my experience in handling such cases, more often than not the bhang is usually retrieved from a pocket or pockets. My understanding is that most underwear do not have pockets where possibly the bhang could be kept or stored.** 11. **The totality of the evidence is that it is not clear where the 4 sachets were exactly retrieved from. Their place of discovery should have been made clear from the evidence so as to leave no room for the court to wonder where in the underwear the sachets were hidden.** 12. **It is not in the place of this court to start guessing where they were exactly retrieved from. Since this is not clear from the evidence, I do find that there is indeed doubt as to where exactly the sachets were found. Effectively there being a doubt, as to possession, count 3 similarly fails.** 13. **Given the analysis above, I am thus satisfied that the offence were not proved to the required standards that they were committed by the accused person.** 14. **CONCLUSION AND DISPOSITION.** 15. The upshot of the foregoing is that the prosecution failed to prove the charge of going armed in public contrary to section 88 of the penal code as well as being in possession of narcotics contrary to section 3(1) as read with section 3(2)(a) of the Narcotic drugs and psychotropic substances control Act. 16. The accused is thus acquitted in each of those charges under section 215 of the Criminal Procedure Code. He is thus at liberty unless otherwise lawfully held. 17. Orders accordingly. **DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS..28th …DAY OF …July…2026.** **F.M. MULAMA** **RESIDENT MAGISTRATE** **In the presence of:** Idris Tomno for DPP. Court Assistant:- Abuswaleh.