Maina & 3 others v Republic
Court of Appeal at Nairobi November 25, 1986
Platt, Gachuhi & Apaloo JJA
Criminal Appeals Nos 8 & 19 of 1986 (Consolidated)
(Appeals from the High Court at Nairobi, Owuor & Schofield JJ)
Criminal law – preparation to commit a felony – offence of – essential ingredients of – appellants carrying weapons while walking in a public place – whether such evidence sufficient to establish offence.
Evidence – recent possession – doctrine of – gun stolen in robbery – appellant found in possession of stolen gun two and a half months later – whether such evidence sufficient to prove charge of robbery.
Evidence – hearsay evidence – inadmissibility of – police tipped by informant about robbery plan - appellants arrested with weapons in area mentioned by informant – appellants charged with preparing to commit felony – informant not called to testify – appellants convicted – whether evidence on informant hearsay evidence – whether conviction proper.
Following an ambush laid by the police in an area where they had received information that an offence was going to be committed, the 1st appellant was found with a live pistol in a brief case and the other three with simis tucked in their trousers.
The appellants were arrested and jointly charged in a magistrate’s court with one count each of the offences of robbery, preparing to commit a felony and being in possession of a firearm and ammunition without a firearm and ammunition certificates respectively. It was the prosecution’s case that all the appellants had been in possession of the pistol and ammunition and they had been the persons who had committed a robbery at a certain factory about two and a half months previously during which the pistol was stolen.
Three prosecution witnesses, who were police officers, testified that the arrest of the appellants had been arranged after the police had learnt from an informant of a plan to rob a house near the place where the arrests were made. The alleged informant, however, was never called to testify at the trial.
The appellants were convicted on all the charges and sentenced. On appeal to the High Court, the convictions of the 1st appellant were sustained and with regard to the 2nd, 3rd and 4th appellants, the only conviction upheld against them was for preparing to commit a felony, for which the court passed on them the mandatory minimum sentences of 10 years. The appellants appealed to the Court of Appeal against their convictions and sentences.
1. In order for the conviction of the appellant for the offence of robbery to be sustained, the court had to ask itself whether the evidence led would justify a conclusion that he was one of the persons who had committed the robbery at the factory and such evidence must reach the degree of certainty required to sustain a conviction in a criminal trial.
2. The time lapse of two and a half-months between the date of the theft of the pistol at the factory and the discovery of it on the appellant was so much that it would be unreasonable to hold that the mere possession of the pistol was sufficient to found a conclusion that the appellant participated in the robbery at the factory under the doctrine of recent possession.
3. The 1st appellant’s convictions for being in possession of a firearm and ammunition without ammunition and licence certificates respectively were proper on the evidence and there were no good grounds for interfering with those convictions.
4. In order to sustain a conviction on a charge of preparing to commit a felony, it must be shown that the appellants were armed with a dangerous or offensive weapon and that the circumstances must indicate that they were so armed with the intention of committing a felony.
5. Though the appellants had been armed with offensive weapons, the failure to call the police informant to testify meant that the evidence narrated to the trial court that the informant had advised the police that a robbery was about to be committed was inadmissible because it was hearsay evidence which ought to have been rejected by the court.
6. As the Court was in no position to say whether the trial magistrate would still have come to the conclusion that the appellants were armed with the intention of committing a felony if he had excluded the hearsay evidence, it would be unsafe to allow the conviction for that offence to stand.
7. (Obiter) Had the police not acted precipitately but waited and actually saw the appellants attempt to enter the house which it was alleged they intended to commit a robbery, the Court may well have come to the conclusion that the appellants intended to commit a felony.
1. R v Loughlin 35 Cr App R 69; 95 SJ 316
2. Njunga v Republic  EA 773
1. Penal Code (cap 63) section 295
2. Firearms Act (cap 114)
3. Evidence Act (cap 80) section 175
Mr Khaminwa for the 3rd Appellant
Mr Z Gathaara, State Counsel, for the Respondent
1st, 2nd and 4th Appellants appearing in person