https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/533

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E247 OF 2025** **REPUBLIC……………………………………………………………..………..…..PROSECUTOR** VERSUS **BONIFACE MASAKARI NYONGESA……………..….………..1ST ACCUSED PERSON** **DENNIS OBELO EKISA…………………………………………….2ND ACCUSED PERSON** **JUDGMENT.** **Introduction and Evidence** 1. The accused persons took plea on 28th April 2025 on the charge of being in possession of a firearm contrary to section 4(1) as read with Section 4(2) & Section 4(3)(b) of the firearms act. 2. The Particulars are that the accused persons on the 14th day of April 2025 in Achunet location at Teso North Sub-County within Busia County without reasonable excuse were jointly found in possession of a firearm namely Tokarev Pistol serial number 063368-1944 in circumstances which raised a reasonable presumption that the said firearm was intended to be used in a manner prejudicial to public order without firearms certificate. 3. The accused persons were charged with a second count of being in possession of ammunition contrary to section 4(1) as read with section 4(2)(a) & Section 4(3)(b) of the firearms act. 4. The particulars are that the accused persons on the 14th day of April 2025 at Achunet location in Teso North Sub-County within Busia County without reasonable excuse were jointly found in possession of eight rounds of ammunition of 7.62\*25mm in circumstances which raised reasonable presumption that the said ammunitions were intended to be used in a manner prejudicial to public order without firearms certificate. 5. The accused persons pleaded not guilty to the charges and were admitted to Bond terms of Kshs. 500,000/= with surety of similar amount. The matter was set down for hearing and the prosecution called a total of five witnesses. 6. PW1 was one PC Harrison Kazungu off the Directorate of Criminal Investigations Teso North Sub-County who testified that on 14th April 2025 he received information that there were people suspected of being in possession of firearm. A team with officers from Busia County was convened and they proceeded to Malaba Township where they laid a trap. Two people were found and arrested and they led the officers to the house where the 1st accused person resided and the 1st accused person showed the officers the gun wrapped in some bags. The accused person explained that he got it in the rented house and the two accused persons were arrested. The firearm was taken to the ballistics department for further investigation. That he did not know the accused person prior to the incident. That the accused persons were holding the firearm illegally which threatened the security of the public and they did not have a firearm certificate. 7. On cross-examination by the first accused person he stated at the time of arrest the two accused persons were in Malaba at an entertainment joint. That he did not resist and he led the team of officers to his house. That he informed the officers that the house belonged to his boss. That an expert was best placed to confirm if the pistol had been used. 8. On cross-examination by Mr. Wanyama Counsel for the 2nd Accused person he testified that there were three vehicles in the operation with about eight officers. Three officers remained outside the entertainment joint and the accused persons were arrested outside the bar. That the information regarding the tip off was classified. That the firearm was not present at the point of arrest and he could not estimate the distance from the joint to the house. That on arrival to the house only the first accused person led them to the house with the second accused person remaining in one of the vehicles. That the building was owned by David Gekara and he was not aware whether David Gekara was a retired DCI officer. That a ballistics expert was further best placed to tell the court if fingerdusting was done. That he did not know if the firearm was at the police station and the arrest a performance. That no money was sought to withdraw the matter against the second accused person. 9. There was no re-examination for this witness. 10. PW2 was one David Moses Gekara a retired police officer having retired in the 1990s. He told the court that he had a structure at Ikapolok area which he started constructing in 2006 but was unable to complete it except for a bedroom which he stayed in between 2013 and 2015 before relocating to Nairobi. He left a few household items and in 2021 he appointed a caretaker, the first accused person to take care of the house. That on 15th April 2025 he was contacted by officers from the Directorate of Criminal Investigations and informed that a firearm had been recovered from his house. That the accused person lived in a room far from the one he lived. That he travelled to Malaba and the house was opened in his presence and that of the accused person and a pistol was recovered. That the accused person explained how we went through the ceiling and into his room where he allegedly recovered a black box. That he did not know the pistol as he had left the house for a duration of over ten years. 11. On cross-examination by the first accused person he testified that he employed the accused person as a caretaker. That he was a police officer and intelligence officer reporting on government issues. That he was not aware if it is the accused person who gave his phone number to the officers. 12. On cross-examination by counsel for the second accused person he testified that he was a police officer and he surrendered his weapon in 1996. That he only saw one suspect and did not see the Pistol at the time the accused person demonstrated how he accessed his bedroom. 13. There was no re-examination for this witness. 14. PW3 was one SSP Alex Chirchir officer with the ballistics department and who produced a ballistics report on behalf of his colleague one Kenneth Jumba who could not appear in court due to logistical reasons where it was confirmed that what was recovered was a pistol tokarev model tt33 made in Russia 7.62mm\*25mm and that the bullets could also fire according to the firearms act. 15. On cross-examination by the first accused person he testified that finger dusting was not done as it was not within his scope of work. 16. On cross-examination by counsel for the second accused person he testified that the exhibits were availed in a glove in the same manner they had been shown to the court. He explained that although fingerprint analysis could have been undertaken, it was not done because the exhibits had passed through several hands before reaching the ballistics section thereby compromising the possibility of obtaining reliable fingerprint evidence. 17. In re-examination he testified that fingerprints can be taken from the scene. That fingerprints are not always analyzed. But it could have been done at the scene and prior to interference with the exhibit. 18. PW4 was one CPL David Mwangi of the Directorate of Criminal Investigations of the department of operations. That they received information that there was a person in possession of a firearm in Malaba. Operations were laid out and the accused persons before court were arrested at a Hotel in Malaba. They were interrogated and went to the house of one Boniface who was a tenant where in his room a pistol was recovered with 8 bullets and a magazine. They interrogated him on how he got the firearm and were not satisfied with his explanation and he was arrested and arraigned in court to face the instant charges. 19. On cross-examination by the first accused person, he testified that he was trailing the accused person and found him. That he got information that he had a firearm and found the accused person drinking alcohol. That two people were arrested and he did not go with the gun to the house where he dismantled it. 20. On cross-examination by counsel for the 2nd accused person he testified that he did not know if one Anyonje was the informer but the suspects were found in a bar and restaurant. That no recovery was made at the bar. That the second accused person was present in the house at the point of recovery. 21. There was no re-examination for this witness. 22. PW5 was one CPL Charles Rutto the investigating officer who testified that on 14th April 2025 he was at work as usual when he received intelligence of persons who had a gun in Malaba. He shared the information with the County Commander and a team was convened. They proceeded to Malaba Town at Tumaini Bar where the accused persons were arrested. The first accused person led them to his house and a pistol was recovered loaded with eight rounds of ammunition. The accused persons were arrested. In the course of investigations, he realized that a case of threatening to kill was reported at Malaba Police Station by one Sikulia Mwachi who had been threatened by the first accused person that he would shoot him and after the recovery he was certain that the first accused person had a gun. That both accused persons were charged. That he was further informed that the accused persons were planning to sell the gun. 23. On cross-examination by the first accused person he testified that the two accused persons were in a bar at the time of arrest. That there was a third party and the informer who tipped them off could not come to court. That they conducted a search and the accused person gave them the number of the owner of the plot who was a retired officer and who was interrogated. That the accused person was reported for threatening to kill using a pistol and the matter was resolved at the police station. That a ballistics report was best placed to ascertain if the accused person had been using the pistol. That no prospective buyer was located in the course of investigations. That the gun could not have been carried and sold like any usual commodity at the hotel. 24. On cross-examination by counsel for the second accused person he testified that after arrest at the bar they left the second accused person in the vehicle. That the second accused person was not involved in the case of threatening to kill. That he did not acquire any permission from the attorney general to use the OB in the offence of threatening to kill against any suspect. That the court could determine the fairness of the use of that OB. 25. In re-examination he testified that it is not a must that photographs of recovery be taken. That the accused person was staying where the gun was recovered and that in the course of investigations he got the other OB referred to in the matter. 26. This marked close of the prosecutions and pursuant to a ruling delivered on 26th February 2026, the accused persons were placed on their defence under Section 211 of the Criminal Procedure Code. The first accused person elected to give sworn evidence and call one witness. However, on the date of defense hearing he testified on his own behalf without calling any witness. The second accused person initially elected to give unsworn evidence but later opted to give sworn evidence without calling any witnesses. 27. The first accused person testified as DW1. He told the court that he started working as a caretaker in 2021 in a big house and some other rooms were locked. That he then entered his boss’ room through a ceiling board and found a bag which had a white paper and inside was a pistol. He then left and went and told the second accused person what he had found. That the second accused person told him that he had a person who usually returns such pistols to the government and he asked the second accused person to notify him once he had linked up with the said person. He later joined the accused person at Tumaini Bar when they were arrested. He informed the officer that the gun belonged to his boss. That the officers rejected his explanation and that is how he was arraigned in court. 28. On cross-examination by the prosecution he testified that he was living in that house. He saw the police officers and he is not licensed to own a firearm or ammunition. 29. On cross-examination by counsel for the second accused person he testified that he spoke to the accused person through the phone and he found two people seated at the bar waiting for him. That the pistol was recovered from his boss’ house where he was a caretaker. That they went with the second accused person where his house was located but he was left in one of the vehicles. 30. The second accused person testified as DW2 who told the court that on the material date he went to Tumaini Bar to buy food and he found the first accused person who invited him for a drink. He shortly after saw police officers who arrested them. That the first accused person had a bag placed over his head and was tortured as he remained in the car. He was told to get out of the car. A pistol was brought, photographs taken and he was asked for Kshs. 50,000/= to secure his release. That he did not have the money and he was arraigned in court. That the first accused person did not inform him of any gun. 31. On cross-examination by the prosecution he testified that he did not know the first accused person despite being arrested together and he had spoken the truth. That he did not know the third party who was at Tumaini bar and the first accused person was covered using a polythene bag and had been handcuffed at the same time. 32. On cross-examination by the first accused person he testified that he did not know the first accused person and he did not give him any information. That he did not know Anyonje and whether the said Anyonje was an informer. 33. In re-examination he testified that he did not know the first accused person since the year 2008 as alleged, he did not know the informer and he had not gone to the accused person’s house the morning prior to the arrest. 34. This marked close of the defense case. The first accused person and counsel for the 2nd accused person filed submissions and the matter was reserved for judgment on 20th August 2026. The court has read and considered those submissions. **Analysis and Determination** 1. The issue for determination is whether the prosecution proved beyond reasonable doubt that either of the accused persons was in possession of the firearm and ammunition as charged and, further, whether the circumstances established that the firearm and ammunition were intended to be used in a manner prejudicial to public order. 2. It is settled that possession, particularly in offences involving firearms, is not to be understood merely in its literal or physical sense. It may be actual or constructive. Constructive possession, however, requires evidence from which the Court can safely infer knowledge of the existence of the item and the requisite control or dominion over it. Section 2 of the Firearms Act encompasses both actual and constructive possession, but the prosecution must nevertheless establish that the accused knowingly had the item in question. 3. The evidence on record must therefore be examined against each accused person individually. 4. As regards the 1st accused, it is not disputed that the house in which the firearm was recovered was associated with PW2 and that the 1st accused was a caretaker thereof. The firearm was, however, not recovered from the person of the 1st accused or from a place shown to be under his exclusive control. It was recovered from a room in the house of PW2 which the accused person is said to have accessed through the ceiling. The evidence further does not establish that the 1st accused was seen handling the firearm, placing it in the ceiling, exercising control over it or otherwise dealing with it as an owner. 5. The evidence that the 1st accused showed the police how he had climbed onto the ceiling and retrieved the firearm is a circumstance that the Court has carefully considered. Standing alone, however, that circumstance does not irresistibly establish that he knew of the firearm before the police operation or that it was in his possession. There was no evidence of fingerprints or other forensic evidence linking him to the firearm. Indeed, the ballistic evidence did not establish any such connection. 6. More significantly, PW2's connection to the premises raises a material evidentiary gap which the prosecution did not satisfactorily bridge. PW2 was residing in the house between 2013 and 2015 and testified that he had surrendered his firearm in the year 1996 upon his retirement. Yet no evidence was adduced demonstrating the circumstances of that alleged surrender, the identity or serial number of the firearm surrendered, or otherwise excluding the reasonable possibility that the firearm recovered from the premises was the very firearm associated with PW2. 7. The Court is not required to establish who owned the firearm before an accused can be convicted. Nevertheless, where the evidence raises a reasonable possibility that the firearm may have belonged to or previously been under the control of another person who had access to the premises, that possibility becomes relevant when determining whether the prosecution has proved the accused's knowledge and control beyond reasonable doubt. 8. As regards the 2nd accused, the evidentiary position is even less compelling. The evidence, as presented, is that following a tip-off the accused persons were arrested. The 2nd accused's account was that he was taken to the house and thereafter left in the police vehicle while the police proceeded to the house where the 1st accused person resided and recovered the pistol. There is no evidence that he was found in physical possession of the firearm or ammunition. There is equally no evidence that he knew that the firearm was concealed in the premises, had access to the particular place of concealment, exercised control over it or had any proprietary or other interest in it. 9. The mere fact of the 2nd accused's presence in the company of the 1st accused or his arrest pursuant to a tip-off cannot establish constructive or joint possession. The law permits constructive possession to be inferred from circumstances, but the inference must arise from proved facts and not from suspicion or conjecture. 10. The Court has further considered the evidence that the accused persons colluded to sell or were in the process of selling the pistol. The prosecution did not lead evidence demonstrating any attempt by the accused persons to use, sell, transfer or otherwise deal with the firearm or ammunition. The prosecution was further required to prove the circumstances alleged in the particulars of the charge sheet, including the circumstance that the firearm and ammunition were intended to be used in a manner prejudicial to public order. This has rightly been observed and submitted by counsel for the 2nd accused person. 11. No evidence was led of negotiations for the alleged sale, an identified prospective purchaser, an agreed price, a meeting, an attempted transfer or any other step towards a sale. There was likewise no evidence that the firearm had been used in the commission or attempted commission of any offence. The ballistic evidence did not link the firearm to any such offence. The cartridges were used for purposes of examination and analysis; their examination did not establish that they had previously been used by either accused in the commission or attempted commission of an offence. 12. The Court is alive to the fact that the prosecution need not demonstrate an actual completed offence before the statutory circumstance relating to intended use can be established. Equally, however, intention cannot be inferred merely from the existence of a firearm and ammunition. There must be proved circumstances from which the alleged intention may reasonably and safely be inferred. In the present case, those circumstances are absent. 13. The Court therefore finds that the prosecution established that a firearm and ammunition were recovered during the police operation. What it did not establish beyond reasonable doubt is that either accused person knowingly possessed those items, whether actually, constructively or jointly. The evidence is equally insufficient to establish the further allegation that the items were intended to be used in a manner prejudicial to public order. 14. The fact that the police acted upon a tip-off may explain why the operation was mounted and why the accused persons were arrested. It does not, without corroborative evidence, prove the truth of the information contained in the tip-off. A tip-off is a basis for investigation; it is not itself proof of the facts alleged. 15. The Court must also guard against shifting the burden of proof to the accused persons. The prosecution bears the obligation of proving every essential ingredient of the offence beyond reasonable doubt. The accused persons are not required to establish who owned the firearm, how it came to be in the ceiling, or why it was there. Those matters may become relevant in assessing the prosecution case, but the ultimate burden remains with the prosecution. 16. It is therefore the finding of the court that the prosecution failed to prove its case to the required threshold of beyond reasonable doubt. Accordingly, the accused persons are acquitted of the offences of Being in Possession of a firearm contrary to section 4(1) as read with Section 4(2)(a) & Section 4(3)(b) of the firearms act and being in possession of ammunition contrary to Section 4(1) as read with Section 4(2)(a) & Section 4(3)(b) of the firearm’s act under Section 215 of the Criminal Procedure Code. **JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 20TH DAY OF AUGUST, 2026.** In the Presence of Boniface Masakari- the 1stAccused Person Dennis Obelo- the Second Accused Person Mr. Wanyama Counsel for the 2nd Defendant and Mr. T. Rotich Prosecution Counsel Court Assistant: Brenda Ochieng’ **A.Z. OGANGE** **RESIDENT MAGISTRATE** 20.08.2026