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|Case Number:||Criminal Appeal 236 of 2010|
|Parties:||SAMSON A. LENYAKOPIRO v REPUBLIC|
|Date Delivered:||13 Apr 2011|
|Court:||High Court at Meru|
|Judge(s):||Jessie Wanjiku Lesiit|
|Citation:||SAMSON A. LENYAKOPIRO v REPUBLIC  eKLR|
|Case History:||From Original P.M’s Criminal Case No.876 of 2010 at Meru; S. N. Andriessen- P.M.)|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
The Appellant SAMSON LENYANKOPIRO was arraigned before the PM’s court Isiolo with another, charged with being found in possession of Ammunition C/S 89 (1) of the Penal Code. In the second count they were charged with Handling Stolen Goods contrary to Section 322 (1) and (2) of the Penal Code. The particulars of the two counts were that both the appellant & his co-accused were jointly found with 27 rounds of 5.56 mm ammunition and 29 rounds of 7.62 mm ammunition.
The appellant admitted both charges when they were read to him. The facts were then given by the prosecution as follows:
The appellant in answer to the facts stated:
The appellant was convicted in count 1. Mr Omayo filed the appeal on behalf of the appellant. He raised the grounds of appeal in the petition of appeal as follows:
Mr. Kimathi for the state did not oppose retrial.
I have considered the appellant’s appeal. I am in agreement with the two counsels for the appellant and the state that a retrial should be held in this case. My reasons are however completely different from those urged, by Mr. Omayo even though the lack of Firearms Examiner to fully establish the charges of illegal possession of ammunition was a common ground and a fundamental requirement.
The facts led by the Prosecution did not disclose the offence charged. There was a misjoinder of counts. The facts disclosed that each accused was found with different types and rounds of ammunition. The charge and particulars disclosed that the accused before court had joint possession of the rounds of ammunition recovered. On that ground alone, the learned trial magistrate ought to have rejected those facts and set down the case for hearing. Faced with the lack of the Firearms Examiner’s Report the learned trial magistrate should have adjourned the taking of facts from the prosecution to another day when the Report, would be availed. If none was forthcoming the case should have been set down for hearing.
I will allow the appeal by quashing the conviction and setting aside the sentence.
I can see from the original file that the case against the appellant’s co-accused has not been heard. I order that this case be returned to PM’s court Isiolo for hearing and disposal with the guidance of the comments made in this judgment.
Those are my orders.