The definition of an explosive under the Explosives Act includes substances which can only explode with the use of a stimulus

Ahamad Abolfathi Mohammed & another v Republic

Criminal Appeal No 135 of 2016

Court of Appeal at Nairobi

P Kihara Kariuki, PCA, K M'Inoti & A K Murgor, JJ A

January 26, 2018

Reported by Beryl A Ikamari

Statutes-interpretation of statutory provisions-explosives-meaning of the term "explosive"-scope of the definition of an explosive under the Explosives Act-whether a substance which could only explode with the use of a stimulant was an explosive-whether cyclotrimethylene trinitramine (RDX) was an explosive-Explosives Act, (Cap 115), section 2.

Criminal Law-possession-unlawful possession-nature of conduct that would amount to unlawful possession-whether allegations that accused persons had an explosive placed on a golf course for purposes of causing harm, showed that the accused persons were in possession of the explosive-Penal Code (Cap 63), section 4.

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-fair trial-extraction of evidence allegedly by means of torture and refusal to avail an intelligence report relied on to arrest accused persons-requirements relating to proof of claims of extraction of evidence by means of torture and whether such claims could be made at an Appellate Court in the first instance-extent of an accused's right to access evidence within the prosecution's possession-Constitution of Kenya 2010, articles 50(4) & 50(2)(j).

Evidence Law-circumstantial evidence-probative value of circumstantial evidence-criteria to be met in order for circumstantial evidence to sustain a conviction-where it was shown that there were co-existing circumstances that weakened or destroyed the inference of guilt.

Evidence Law-admissibility-confessions-nature of evidence that constituted a confession-admissibility of evidence which was discovered after an Accused person gave information-effect of improper admission of evidence-where an Accused gave information leading to the discovery of evidence and it was not shown that the information was a confession taken in the prescribed form and before the prescribed authority or persons-Evidence Act (Cap 80), sections 25A & 31; Criminal Law (Amendment) Act, No 5 of 2003, section 102.

Criminal Law-sentencing-principles applicable to sentencing-improper sentencing-circumstances under which an Appellate Court would interfere with the discretion of a Trial Court to impose a sentence on an Accused-imposition of one omnibus sentence for three different counts and failure to take into account the period already spent in custody-Criminal Procedure Code (Cap 75), sections 33(2) & 361(1)(a).

Brief facts

The Appellants were citizens of Iran who came to Kenya on June 12, 2012 on tourist/holiday visas which were valid for two weeks. They were intercepted and arrested by officers from the Anti-Terrorism Police Unit, who said that the Appellants were in Kenya on a terroirst mission. They were accused of putting an explosive substance Cyclotrimethylene trinitramine (RDX) at Mombasa Golf Course along Mama Ngina Drive in Mombasa County.

The Appellants were charged before the Chief Magistrate's Court, Nairobi with three offences. First, they were charged with committing an act intended to cause grievous harm contrary to section 231 of the Penal Code. Secondly, they were charged with preparing to commit a felony contrary to section 308(1) of the Penal Code and thirdly, they were charged with being in possession of explosives contrary to section 29 of the Explosives Act.

The evidence against the Appellants was circumstantial as there was no direct evidence of them being in possession of RDX or placing it on the golf course. The Trial Court convicted the Appellants on all three counts and sentenced them to life imprisonment for the first count, ten years imprisonment for the second count and fifteen years imprisonment for the third count, all the sentences were to run concurrently. On appeal at the High Court, the sentence was reduced to a consolidated sentence of 15 years imprisonment. The Appellants preferred a second appeal at the Court of Appeal.

Issues

1. Whether under the terms of the Explosives Act, cyclotrimethylene trinitramine (RDX) was an explosive, given that it could not explode without the use of a stimulus to ignite it.
2. Whether there was evidence that the Appellants were unlawfully in possession of RDX. 
3. Whether the Appellants' right to a fair trial was violated by the State in that evidence was allegedly extracted by means of torture and there was a failure to avail an intelligence report which was relied on to arrest the Appellants.
4. Whether the circumstantial evidence tendered was sufficient to support the conviction.
5. What were the principles applicable to sentencing and when would an Appellate Court interfere with a lower Court’s sentence?

Held

1. Under section 361(1)(a) of the Criminal Procedure Code, on a second appeal, the Court was obliged to consider only issues of law. It is an established principle that where two Courts (the Trial Court and the first Appellate Court) made concurrent findings of fact, the Court is obliged to respect the findings unless the Court was satisfied that the conclusions are not supported by the evidence or are based on a perversion of the evidence.
2. Section 2 of the Explosives Act defined the term "explosive." From the definition, an explosive included any blasting powder or substance which was used or manufactured with the aim of producing a practical effect by explosion. The evidence of the Government Chemist, PW16 indicated the RDX was a blasting powder. The mere fact that RDX required a detonator or stimulus in order to explode did not take it outside the definition of an explosive.
3. Under section 2(b) of the Explosives Act, a fuse or detonator was within the meaning of an explosive even though it amounted to a mere igniter. If a fuse or detonator, whose purpose was to ignite a substance and cause it to explode, was an explosive, even the substance that would explode was an explosive. Neither gunpowder nor dynamite could explode or detonate on its own but the Explosives Act defined it as an explosive. Gunpowder required an igniting or compressing agent while dynamite required a blasting cap to cause an explosion.
4. Section 4 of the Penal Code defined possession. Under the definition, possession included having anything (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person.
5. Being in possession of RDX did not require the Appellants to be in actual, personal physical possession of it. It only required evidence that they knowingly had RDX at the golf course for their use or any other person.
6. The right to a fair trial was guaranteed under the Constitution. Part of the right to a fair trial under article 50(2)(j) was the right to be informed in advance of the evidence the prosecution intended to rely on and to have reasonable access to that evidence.
7. The record indicated that the Appellants were availed all the statements of the prosecution witnesses before those witnesses testified. They also had access to the exhibits that were produced. What they complained about was that they were not given the intelligence report which led to their arrest for suspicion of involvement in terrorism acts.
8. The Appellants were entitled to evidence that the police intended to rely on the trial and any evidence in the possession of the police that could exonerate them from the charges they were facing, even though the police did not intend to use that evidence.
9. The right to access evidence that the police intended to rely on was not totally unfettered; it was qualified by the constitutional requirement that access ought to be reasonable and it depended on the circumstances of each case.
10. The Appellant's right to a fair trial under article 50(2)(j) was not violated. All the evidence that the prosecution produced in support of its case was availed in advance to the Appellants.
11. Under article 50(4) of the Constitution evidence obtained in a manner that violated a fundamental freedom or right in the Bill of rights had to be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice. The 1^st Appellant made a claim that evidence was obtained from him by means of torture.
12. The claim of torture was not made when the 1^st Appellant appeared before the Trial Court and he would reasonably be expected to have made the claim then. There was nothing on record to substantiate the torture claims. Establishing torture required cogent evidence.
13. The evidence of the Appellant's possession of RDX was purely circumstantial because no witness saw them in possession of the substance or placing it on the golf course. The evidence of PW 7, the taxi driver and PW 14, the golfer at Mombasa Golf Club, indicated that the Appellants were at the golf course, but were not in physical possession of any luggage or parcel.
14. Circumstantial evidence is evidence, which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form as strong a basis for proving the guilt of an accused person just like direct evidence.
15. Circumstantial evidence as a basis for a conviction had to satisfy several conditions, namely;

1. The circumstances from which the inference of guilt was to be drawn had to established cogently and firmly;
2. The circumstances had to unerringly point towards the guilt of the Accused; 
3. The circumstances, taken cumulatively, ought to form a chain so complete that there was no escape from the conclusion that within all human probability the crime was committed by the Accused and none else; and,
4. The prosecution had to establish that there were no other co-existing circumstances which would weaken or destroy the inference of guilt.

16. From the evidence on record, the golf course was not fenced or guarded and it was possible for any member of the public to enter it and place the RDX where it was found. In the absence of any other circumstantial evidence tying or linking the Appellants to the RDX, the easy accessibility, without let or hindrance, of the golf course showed strong co-existing circumstances that were capable of destroying the inference of guilt on the part of the Appellants.
17. Evidence showed that the Appellants had special knowledge of the existence and concealment of the RDX on the golf course. The Appellants led the police to the place where the RDX was found on the golf course. The Trial Court and the first Appellate Court found that the evidence with regards to the RDX voided the possibility of other co-existing circumstances capable of destroying the inference of guilt on the Appellant's part.
18. Section 25A of the Evidence Act made confessions inadmissible unless they were made in Court. Section 102 of the Criminal Law (Amendment) Act, 2003, which repealed section 31 of the Evidence Act provided that information from an Accused person leading to the discovery of evidence was not admissible. Additionally, the Statute Law (Miscellaneous Amendments) Act, 2007, allowed confessions to be made before a judge, a magistrate or a police officer (other than an investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the suspect’s choice. 
19. It was never the prosecution's case that the Appellants had confessed to committing the offences that they were charged with. Accordingly, the Trial Court and first Appellate Court erred in admitting the evidence which led to the discovery of the RDX.
20. The Trial Court erred in sentencing the Appellants to 15 years imprisonment for an offence for which the maximum prescribed sentence was 7 years imprisonment but that was not evidence of judicial bias. It was an error which was eventually corrected by the first Appellate Court.
21. The challenge relating to the sentence was essentially a challenge on the exercise of discretion. As a principle, an Appellate Court would not interfere with the exercise of discretion unless it is shown that the Trial Court acted on wrong principles; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive.
22. Under section 361 (1) (a) of the Criminal Procedure Code severity of a sentence alone was a question of fact, not one of law. Without a demonstration that the Court erred on principle, the Court of Appeal had no basis for interfering with the sentence.
23. Some comments by the Trial Court, with respect to sentencing, were unnecessarily exuberant but they did not form a basis for impeaching the Appellant's conviction, particularly when they were made at the tail end of the trial rather than at the beginning. A Trial Court could consider the prevalence of an offence before sentencing an Accused person but it ought not to suggest or imply that an Accused person committed offences for which he had not been convicted or permit the making of prejudicial statements meant to influence the severity of a sentence.
24. On two grounds the first Appellate Court could be faulted with regard to sentencing. First, it imposed an omnibus sentence for all three counts. The Appellants were entitled to be sentenced separately for each count. However, the Appellants did not raise an issue concerning the omnibus sentence. The second was the failure of the Appellate Court to take into account in a meaningful way, the period that the Appellants had already spent in custody.
25. Under section 333(2) of the Criminal Procedure Code, in sentencing, the Court would take into account the period already spent in custody by an Accused person. Taking that period into account would mean that the sentence would be reduced in proportion to the period already spent in custody. It was not enough for the Court to merely state that it had taken that period into account and still order for the sentence to run from the date of conviction. That amounted to ignoring altogether the period already spent in custody. The Appellate Court ought to have directed the sentence to run from the date of the Appellant's arrest.
26. The error by the Trial Court and first Appellate Court of admitting the evidence from the 1^st Appellant which allegedly led to the discovery of the RDX at the gold course, meant that the remaining circumstantial evidence was so weak that it did not unerringly point to the guilt of the Appellants as the only persons who could have placed the RDX on the golf course. The exclusion of the evidence on the discovery of the RDX, meant that there were strong co-existing circumstances that completely destroyed the inference of the Appellant's guilt.

Appeal allowed. (Appellants set at liberty and repatriated back to their country unless they were otherwise lawfully held.)