Jeremiah Kilonzo Musyoki & another v Republic [2016] KEHC 996 (KLR)

Facts

The appellants were charged with possession of firearms and ammunition without a certificate, and preparing to commit a felony. They were found in possession of an AK47 rifle and ammunition at the ferry area in Likoni, Coast Province.

Issues

1. whether the trial magistrate erred in law and fact by not considering the preparation to commit a felony was not proved to the required standard of law
2. whether the learned trial magistrate erred in law and fact in finding the appellants in possession of the firearm without seeing that the same was not in their possession
3. whether the learned trial magistrate erred in law and fact in relying that the 2nd appellant was in possession of the firearm without considering that he was not arrested with anything in question
4. whether the learned trial magistrate erred in law and fact by not considering that the motor vehicle purported to have been seized with firearm was not evidenced in court
5. whether the learned trial magistrate erred in law and fact failing to consider that the burden of proof was not satisfied beyond reasonable doubt
6. whether the learned trial magistrate erred in law and fact by failing to award one consideration to the defence by the 1st appellant and the 2nd appellant's ALIBI defence

Reasoning

The court found that the prosecution failed to prove the preparation to commit a felony beyond reasonable doubt and that the 2nd appellant was not arrested with the firearm. The court also found that the dock identification of the 2nd appellant was not reliable.

Outcome

Appeal allowed against the 2nd appellant, conviction upheld against the 1st appellant.