REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
CRIMINAL APPEAL NO 11 OF 2018
LAMURANI LEPARANA..............................................................APPELLANT
VERSUS
REPUBLIC...................................................................................RESPONDENT
(Appeal from original Conviction and Sentence in Maralal PM Criminal Case No 890 of 2016 – R K Koech, PM)
J U D G M E N T
1. The Appellant herein, LAMURANI LEPARANA, was convicted after trial in Counts II and III, of illegal possession of, respectively, a firearm and ammunition contrary to section 89(1) of the Penal Code. It was alleged in the particulars that on 22/07/2016 at about 05.00 hours in Lojok Village in Westgate are within Samburu East Sub-County, without reasonable excuse, he had in his possession, respectively, the firearm and rounds of ammunition particularized in the charges, and that he had them “in circumstances which raised reasonable presumption that the (said firearm and ammunition) had, respectively, recently been used or was intended to be used, in a manner prejudicial to public order.”
2. On 20/02/2018 the Appellant was sentenced to seven (7) years imprisonment in each of Counts II and III, the sentences to run concurrently. He has appealed against both conviction and sentence. He was acquitted of the charge in Count I.
3. The main point of law argued in the appeal by learned counsel for the Appellant is that the particulars given in both Counts II and III did not disclose the offences charged. In respect to facts, it was submitted that the ballistic evidence placed before the trial court was not sufficient to establish beyond reasonable doubt the recent use of the firearm, or the intention to use the ammunition, in a manner prejudicial to public order.
4. Learned counsel for the Respondent did not support the convictions upon the ground that the particulars given in Counts II and III did not disclose the offences charged.
5. Section 89(1) of the Penal Code provides -
“Any person who, without reasonable excuse, carries or has in his possession or under his control, any firearm or other offensive weapon, or any ammunition, incendiary material or explosive, in circumstances which raise a reasonable presumption that the firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order, is guilty of an offence and is liable to imprisonment for a term of not less than seven years and not more than fifteen years.”
The ingredients of the offence therefore are –
a) The accused person carries or has in his possession or under his control, any firearm, ammunition, etc without reasonable excuse.
b) The circumstances of his carrying, being in possession, etc must raise a reasonable presumption that the firearm, ammunition, etc is intended to be used, or has recently been used, in a manner, or for a purpose, prejudicial to public order.
6. In Count II, no particulars were given of the recent use of the firearm, or the manner in which such recent use had been prejudicial to public order.
7. The charge in Count I was killing of an animal belonging to an endangered species contrary to section 92 as read with section 47(1) of the Wildlife (conservation and Management) Act, 2013. The particulars were that on 17/07/2016 at about 05.00 hours at Lojok Village in Westgate area within Samburu-East Sub-County, he intentionally and unlawfully killed one lioness. If it was intended that the killing of the lioness was the manner or purpose of use of the firearm that was prejudicial to public order, it should have been so stated in the particulars of Count II. In any event, the Appellant was acquitted of the charge in Count I. So, clearly the particulars of the offence given in Count II did not disclose the offence charged.
8. As for Count III, the particulars given were that there was a reasonable presumption that the said ammunition “had to be used in a manner prejudicial to public order.” No particulars of that intended use that would be prejudicial to public order were given. In this count too, the particulars given were insufficient and did not disclose the offence charged.
9. Learned counsel for the Respondent properly conceded this appeal. In the event I will allow the appeal in its entirety. The two convictions are hereby quashed and the sentences imposed upon the Appellant set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 2ND DAY OF MARCH 2022
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 3RD DAY OF MARCH 2022