Abdi Wario Buru v Republic [2005] KECA 290 (KLR)
The bottom line
#The Court of Appeal quashed one conviction because the charge described the wrong offence, but kept the firearm and ammunition convictions and sentences intact.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the conviction in count I for preparation to commit a felony contrary to section 308 (2) of the Penal Code could stand where the particulars of the charge stated the ingredients of the offence under section 308 (1) and there was no evidence that the appellant intended to commit a felony.
- 2.Whether there was sufficient evidence to support the concurrent findings of the two courts below that the appellant was in possession of the pistol and rounds of ammunition in counts IV and V, and whether the Court of Appeal as a second appellate court could interfere with those concurrent findings of fact.
Key legal issues
#Whether the count I charge of preparation to commit a felony under section 308 (2) of the Penal Code was fatally defective because its particulars pleaded the ingredients of section 308 (1).
The charge was incurably defective. The particulars alleged that the appellant and others were found armed with dangerous weapons intending to commit a felony, which are the ingredients of section 308 (1), not section 308 (2). The magistrate appreciated the defect but neither amended the charge nor convicted under section 308 (1) as section 187 of the Criminal Procedure Code permitted. There was also no evidence of an intention to commit a felony. The conviction and sentence on count I were quashed and set aside.
The Court compared the particulars, which alleged being armed with dangerous weapons in circumstances showing an intention to commit a felony, with the statutory ingredients and found they matched section 308 (1). Although both offences fall within Chapter XXIX of the Penal Code and section 187 of the Criminal Procedure Code would have allowed conviction on the uncharged offence, the magistrate did not take that course. The State itself did not support the conviction. Further, there was no evidence that the appellant and others intended to commit any felony, nor evidence from which such an inference could properly be drawn, so the conviction could not be sustained on any basis.
The proper approach of a second appellate court to concurrent findings of fact of the two courts below.
A second appellate court will not lightly disturb concurrent findings of fact unless they cannot be supported by the evidence or are based on misdirections or errors of law. Findings on credibility belong to the trial court, which had the advantage of seeing and hearing the witnesses, and a first appellate court will not normally interfere with them. Both lower courts here evaluated the evidence, including the appellant's defence, and made concurrent findings which the evidence supported, so there were no grounds for interference.
The Court restated the settled thresholds: credibility findings belong to the trial court and a first appellate court will not normally disturb them unless no reasonable tribunal could have made them or the trial court erred in law; and a second appellate court will not lightly disturb concurrent findings of fact unless unsupported by evidence or based on misdirection or error of law. Applying these standards, the Court found that both judgments considered and evaluated the relevant evidence, including the defence, and that the concurrent findings were supported by credible evidence which was believed.
Whether the evidence established that the appellant was in possession of the pistol and rounds of ammunition (counts IV and V).
Yes. The trial court found, on credible evidence, that although the appellant was not apprehended in actual possession, he threw down the pistol just before arrest; the police recovered the pistol loaded with 5 rounds and two more bullets at the scene, and two earlier bullets were linked to the pistol by ballistic evidence. The first appellate court re-evaluated the evidence, disbelieved the appellant's account that he was an innocent clothes dealer arrested in town, and confirmed the convictions as safe.
The evidence showed the appellant walking in the company of seven strangers, being chased and arrested in the bush in the evening, dropping something resembling a pistol during the chase, with a bullet falling from his jacket, and the area being later searched by police who recovered the pistol loaded with 5 rounds and two bullets. The two courts below made concurrent findings on these circumstances and the evidence was believed, while the appellant's account was disbelieved. On the settled approach to concurrent findings, the Court was satisfied there were no grounds for interfering and that the appellant was properly convicted on those counts.
Legal principles established
#- A charge laid under section 308 (2) of the Penal Code whose particulars plead the ingredients of the offence under section 308 (1) is incurably defective, and a conviction under section 308 (2) on such a charge cannot stand.
- A second appellate court will not lightly disturb the concurrent findings of fact of the two courts below unless the findings cannot be supported by the evidence or are based on misdirections or errors of law.
- Findings of the lower court based on the credibility of witnesses are ordinarily not interfered with on first appeal unless it is shown that no reasonable tribunal could have made such findings or that the trial court erred in law in making them.
- Where the offence proved but not charged is contained in the same Chapter of the Penal Code as the offence charged, a trial court may by virtue of section 187 of the Criminal Procedure Code convict the accused of the uncharged offence.
Court orders
#- 1.Appeal against conviction in count I allowed; the conviction for preparation to commit a felony contrary to section 308 (2) of the Penal Code quashed and the sentence of 5 years imprisonment set aside.
- 2.Appeal against conviction and sentence in counts IV and V dismissed; the convictions for being in possession of a firearm without a firearm certificate and for being in possession of 9 rounds of ammunition without a firearm certificate, and the sentences of 7 years imprisonment on each count, stand.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- H.C.CR.A. No. 36 of 2003
- Jurisdiction invoked
- No constitutional or statutory jurisdictional provision is expressly invoked in the judgment; the appeal reached the Court of Appeal as a second criminal appeal from the High Court of Kenya at Machakos (H.C.CR.A. No. 36 of 2003), which had dismissed the appellant's first appeal from the trial magistrate's convictions.
Relief refused
#The appellant's request, through grounds 1 to 3, that the convictions and sentences on counts IV and V (possession of a firearm without a firearm certificate and possession of 9 rounds of ammunition) be set aside on the basis that the evidence was inconclusive and the prosecution case unproved.
The two courts below made concurrent findings of fact, supported by credible evidence, that the appellant was chased by members of the public, threw down the pistol in the course of the chase, and that the pistol loaded with 5 rounds and additional bullets were recovered at the scene; a second appellate court does not lightly disturb such findings.
Costs
No order as to costs was made; the judgment contains no costs order.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For those reasons, we allow the appeal against conviction in count I quash the conviction and set aside the sentence. The appeal against conviction and sentence in count IV and V is dismissed. Orders accordingly.
Those particulars are the ingredients of the offence of preparation to commit a felony under section 308 (1) of the Penal Code and not the ingredients of an offence of preparation to commit a felony under section 308 (2) of the Penal Code.
Moreover, a second appellate court will not lightly disturb the concurrent findings of fact of the two courts below unless they cannot be supported by the evidence or unless based on misdirections or errors of law
A first appellate court would not normally interfere with findings of the lower court based on credibility of witnesses unless it is shown that no reasonable tribunal could make such findings or that the trial court erred in law in making the findings
by virtue of section 187 of the Criminal Procedure Code the trial magistrate could have perfectly convicted the appellant of the offence under section 308 (1) of the Penal Code although he was not charged with it
However, the evidence against him by Julius Mali (PW6) strongly and credibly shows that he threw down the items just prior to his apprehension.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdi Wario Buru v Republic [2005] KECA 290 (KLR)", Case Analysis (2005). Criminal Appeal No. 216 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/290/eng@2005-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.