[2009] KEHC 30 (KLR)
The sentence imposed by the trial magistrate on the first accused (a fine of Ksh. 60,000 or one year imprisonment) was unlawful because the Firearm Act prescribes a mandatory minimum prison term for the offence of possession of ammunition without a firearm certificate. The High Court, exercising its revisionary...
Source-derived case information.
- Citation
- [2009] KEHC 30 (KLR)
- Parties
- Applicant: Republic; Respondent: Samson Lotinyang; Respondent: Joseph Longolepum
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 1 of 2010
- Procedural Posture
- Criminal Revision / Sentence Revision After Conviction and Sentencing at Magistrate Court
- Outcome
- Sentence enhanced; first accused to serve 8 years imprisonment.
- Legal Topics
- Illegal Possession of Ammunition, Firearms Act Offences, Sentencing Guidelines, Revision of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samson Lotinyang
Respondent
Joseph Longolepum
Respondent
Procedural Posture
Criminal Revision / Sentence Revision After Conviction and Sentencing at Magistrate Court
Legal Issues
- 1 Whether the sentence imposed on the first accused was lawful under the Firearm Act.
- 2 Whether the High Court should revise and enhance the sentence to comply with statutory minimums.
Ratio Decidendi
The sentence imposed by the trial magistrate on the first accused (a fine of Ksh. 60,000 or one year imprisonment) was unlawful because the Firearm Act prescribes a mandatory minimum prison term for the offence of possession of ammunition without a firearm certificate. The High Court, exercising its revisionary jurisdiction, found that the sentence did not comply with the statutory requirements and therefore enhanced the sentence to eight years imprisonment to align with the law. The court emphasized the need for compliance with statutory minimums and the seriousness of the offence in the context of regional insecurity.
Court Disposition
Sentence enhanced; first accused to serve 8 years imprisonment.
Orders
- The sentence of a fine of Ksh. 60,000 or one year imprisonment imposed on the first accused is set aside.
- The first accused shall serve 8 years imprisonment.
Full Case Text
Judgment text and source record
249 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Criminal Revision 1 of 2010
REPUBLIC................................................PROSECUTOR.
VERSUS
SAMSON LOTINYANG................................................1ST ACCUSED.
JOSEPH LONGOLEPUM................................................2ND ACCUSED.
R U L I N G.
My attention has been drawn to the order and/or sentence of Kapenguria Principal Magistrate court in Criminal case No. 645 of 2009. REPUBLICVS.SAMSON LOTINYANG & JOSEPH LONGOLEAPUM.
The charge reads: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 cap 114 Laws of Kenya.
The particulars are that on the 19th day of July, 2009 at Ortum Trading Centre in West Pokot District within the Rift Valley Province, without reasonable excuse were jointly found in possession of four (4) rounds of 7. 62 mm special caliber ammunition without a firearm certificate.
The record of proceedings are as follows:-
“21/7/2009.
Coram – Before G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 1 & 2 present in person.
Interpretation – English to Pokot by Jenipher – SCO.
The substance of the charge and every element of it has been explained by the court to the accused person who being asked whether he admits or denies the truth of every element of the charge replies as follows:-
Accused 1:-False.
Accused 2:-False.
G.M.A. ONG’ONDO.
PM.
Court:-Plea of Not guilty entered for accused 1 & 2. Mention on4/8/2009. Hearing on8/9/2009. Each accused may sign bond of Ksh. 25,000/= with surety of like amount or remanded in custody.
G.M.A. ONG’ONDO.
PM.
4/8/2009.
Coram – Before R.M. Wshika – RM.
CP – CIP Okumu.
CC – David.
Accused both present.
Hearing on8/9/09. Mention on18/8/2009.
R.M. WASHIKA.
RM.
4/8/2009.
18/8/2009.
Coram – Before G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David
Interpretation – English to Pokot by David. – CC.
Accused 1 & 2 present.
Accused 1:-I wish to change plea.I had not understood charge.I had been beaten.
G.M.A. ONG’ONDO.
PM.
CP:-May it be19/8/2009for exhibits.
G.M.A. ONG’ONDO.
PM.
Court:-Change of plea for accused 1 for19/8/2009and hearing for accused 2 on8/9/2009and further mention1/9/2009.
G.M.A. ONGONDO.
PM.
19/8/2009.
Coram -before R.M. Washika – RM.
CP – Okumu.
CC – David.
Accused 1 present.
Accused 2 present.
Inter:-Engl./Pokot by David.
Accused 1:-I want to be reminded of charge.
Court:-Substance of the charge sheet and every element of it read to accused in pokot language that he understands and he replies as follows:-
Accused 1:-True I had ammunitions.
Court:-Plea of guilt entered.
CP:-On 19/7/2009 at Ortum trading center, police officers received a tip off that accused with others who used to live under a tree with luggage, beddings under a tree as a temporal home.Police were told and they dashed and a search was done where each was told to stand by his belonging.
Accused was found with 4 rounds of ammunitions on interrogation.Accused denied but later he accepted.Accused did not have certificate to permit him to have ammunitions.
Accused 1 was arrested.I produce 4 ammunitions as exhibit.Exhibit 1a, b, c, and d as the said ammunitions.
The same are used in A.K. 47 guns.An example shown to court.It is commonly used around the area by police.
Accused:-Facts are true.
Court:-Convicted on plea of guilty.
Pros:-Accused 1 is a 1st offender but it is a serious offence for this is an area where banditry crime are rampant and cattle rustling and they do kill.
Accused in Mitigation:-My brother is in ward.I am sorry.I wont repeat.
Court:-I have considered accused’s mitigation and the nature of offence is serious, due to him having ammunition and without certificate, to be a lesson to others, accused having pleaded guilty is fined Ksh. 60,000/= or 1 years in prison.
Right of appeal within 14 days.
Pros:-May the rounds of ammunition be returned to O.C.S. for proper disposal.
R.M. WASHIKA.
RM.
19/8/2009.
2/9/2009.
Coram – before G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Interpretation – English/Kiswahili.
Accused 2 present.
Court:-Hearing on8/9/2009for accused 2.
G.M.A. ONG’ONDO.
PM.
8/9/2009.
Coram – Before G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – Jenipher.
Accused 2 present in person.
Interpretation – Engl/Pokot by David.
Accused 1:-I wish to change plea now.
G.M.A ONG’ONDO.
PM.
CP:-I have file from police.
G.M.A. ONG’ONDO.
PM.
COURT:-Both prosecutor and accused 2 ready.
G.M.A. ONG’ONDO.
PM.
Accused 2:-I deny charge.
G.M.A. ONG’ONDO.
PM.
Court:-Plea of not guilty entered for accused 2 hence time out.Hearing on3/11/2009for accused 2. Further mention on22/9/2009.
G.M.A. ONG’ONDO.
PM.
8/9/2009.
22/9/09.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present in person.
Interpretation – Engl/Kiswahili.
Accused 2:-I have to change plea now.
G.M.A. ONG’ONDO.
PM.
CP:-May it be on23/9/2009for accused 2.
G.M.A. ONG’ONDO.
PM.
Court:-Change of plea on23/9/2009for accused 2.
G.M.A. ONG’ONDO.
PM.
22/9/2009.
6/10/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present in person.
Interpretation – Engl/Kiswahili.
CP:-I have no prosecution file and exhibits.
Court:-Facts8/10/2009for accused 2.
G.M.A. ONG’ONDO.
PM.
8/10/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present in person.
Interpretation – engl/Pokot by David.
Accused 2:-I wish to change plea.I had not understood charge.I feared to plead guilty.
G.M.A. ONG’ONDO.
PM.
Court:-Accused reminded of the substance of the charge and every element of it in Pokot language that he understands and speaks and he replies thereto in Pokot language as:-
Accused:-True I had rounds of ammunitions without certificate.
G.M.A ONG’ONDO.
PM.
Court:-Plea of guilty entered for accused 2 only.
G.M.A. ONG’ONDO.
PM.
CP Okumu:-On19/7/2009at Ortum trading Centre in West Pokot District accused 2 and others were intercepted by police officers on patrol found them with four (4) rounds of 7. 62 mm special caliber ammunitions.Accused 2 had them in paper bag.These are the 4 rounds of ammunitions live – Exhibits 1 (a) to (d).I pray for time to get ballistic report to support facts.May it be next month.
G.M.A. ONG’ONDO.
PM.
Accused 2:-No objection.
G.M.A. ONG’ONDO.
PM.
Court:-further facts9/11/2009and further mention on22/10/2009.
G.M.A. ONG’ONDO.
PM.
8/10/09.
22/10/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present in person.
Interpretation – Engl/Pokot by David.
CP:-Report not yet obtained until end of November, 2009.
G.M.A. ONG’ONDO.
PM.
Court:-Facts30/11/2009and further mention5/11/2009.
G.M.A. ONG’ONDO.
PM.
3/11/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present.
Interpretation – Kiswahili.
Hearing on30/11/2009facts accused 2 .Mention on17/11/2009.
R.M. WASHIKA.
RM.
3/11/2009.
17/11/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present.
Interpretation – Kiswahili.
Court:-Hearing on30/11/2009.
R.M. WASHIKA.
PM.
17/11/2009.
30/11/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – David.
Accused 2 present in person.
Interpretation – Engl/Kiswahili.
CP:-Facts not ready as exhibits not availed from Marich andNairobi.I pray to adjourn.
Court:-Facts on14/12/2009.
G.M.A. ONG’ONDO.
PM.
30/11/2009.
14/12/2009.
Coram – G.M.A. Ong’ondo – PM.
CP – CIP Okumu.
CC – Jenipher.
Accused 2 present in person.
Interpretation – Engl./Pokot.
Accused 2:-I wish to plead guilty.I had not understood charge well.
G.M.A. ONG’ONDO.
PM.
Court:-Wish noted.Accsued 2 is reminded of the substance of the charge and every element of it in Pokot language that he understands and he speaks and he replies thereto in Pokot language as:-
Accused 2:-True I was found with 4 rounds of ammunitions without certificate.
G.M.A. ONG’ONDO.
PM.
Court:-Plea of guilty entered for accused 2.
G.M.A. ONG’ONDO.
PM.
Pros:-On 19/72009 at Ortum Trading Center under a tree, police were tipped that accused 2 and his co-accused (convict) were in possession of firearms namely rounds of ammunitions.The police went to the scene and on search, recovered four (4) rounds of ammunitions of 7. 62 mm from both of them.They had no certificates thereof.Both accused arrested and escorted to Kapenguria police station.The police prepared exhibit memo form of 14/10/2009 (Exh. 1) and sent 4 rounds of ammunitions(Exh 2) (a) to (c) and Ballistic report of 16/10/2009 shows that exhibits 2 (a) to (d) were ammunitions under the fire Arms Act (Cap 114) Laws of Kenya – Exhibits 1 to 3 admitted.Accused 2 charged hereof.
G.M.A. ONG’ONDO.
PM.
Accused 2:-Facts are true.
G.M.A. ONG’ONDO.
PM.
Court:-Accused 2 convicted on own plea of guilty.
G.M.A. ONG’ONDO.
PM.
Pros:-Offence serious and he may be treated as 1st offender.
G.M.A. ONG’ONDO.
PM.
Accused 2 in Mitigation:-My father is aged and hospitalized.My mother is aged, too, and they depend on me.I am remorseful.
G.M.A. ONG’ONDO.
PM.
Court:-I consider plea of guilty by accused 2, mitigation, prosecution address on sentence and seriousness of the offence owing to minimum and maximum penalty for it, hence I have to comply with the law.Accused 2 shall serve seven (7) years in prison.Right of appeal explained to accused 2 in Pokot language.
G.M.A. ONG’ONDO.
PM.
14/12/2009.
Pros:-Accused 1 is a convict serving sentence imposed by court 2 on19/8/2009.
G.M.A. ONG’ONDO.
PM.
Order:-Accused 1 was sentenced to a fine of Ksh. 60,000/= in default one (1) year in prison by Hon. R.M. Washika (RM) sitting in court 2 on19/8/2009. However, the section under which accused 1 and 2 are charged, prescribes minimum and maximum prison terms for the offence.Therefore, I forward record to High Court to exercise its powers on revision of sentence imposed on accused 1 on 19/8/2009, by the Hon. RM, pursuant to section 363 (1) & 92) CPC.
G.M.A. ONG’ONDO.
PM.
14/12/2009. ”
Pursuant to section 361 (1) and 362 (2) of the CPC the Principal Magistrate Kapenguria (G.M.A. Ongo’ondo) forwarded the original file with two typed copies of the proceedings with a view to revising the sentence.
I have looked at section 4 (2) (a) as read together with section 4 (3) (a) of the Firearm Act (Cap 114) Laws of Kenya.Having done so I note that the section aforesaid prescribes minimum and maximum prison terms for the offence as charged.I equally note that accused one (1) was sentenced to pay a fine of Ksh. 60,000/= and in default one (1) year imprisonment.
Against that backdrop, in exercise of my powers under sections 362 of the Criminal Procedure Code, I enhance the sentence to 8 years imprisonment.
I direct that this file to be transferred to the Principal Magistrate, Kapenguria for compliance.I further direct the OCPD West Pokot to facilitate.
Dated and delivered at Kitale this ……………………. day of ……………….. 2010.
N.R.O. OMBIJA.
JUDGE.