Republic v Nyongesa & another (Criminal Case E247 of 2025) [2026] KEMC 533 (KLR)
The bottom line
#A Kenyan court acquitted two men of firearm charges because police linked them to the gun only through suspicion and a tip-off, not proof.
What this practically means
#Executive summary
#Key legal issues
#Whether possession (actual or constructive) of the firearm and ammunition was proved against the 1st accused
Not proved. The firearm was recovered from PW2's room, not from the 1st accused's person or exclusive control, and no fingerprint or forensic evidence linked him to it.
The 1st accused was a caretaker of PW2's house; the firearm was found in a room PW2 had occupied. Showing police how he accessed the ceiling did not irresistibly establish prior knowledge or control. No forensic evidence linked him to the firearm, and PW2's prior ownership of a surrendered firearm left a reasonable possibility the weapon was his, undermining proof of the accused's knowledge beyond reasonable doubt.
Whether possession was proved against the 2nd accused
Not proved. He was not found with the firearm and no evidence showed knowledge, access, control or interest in the concealed weapon.
The 2nd accused was arrested at a bar and left in the police vehicle during the recovery. There was no evidence of physical possession, knowledge of the concealment, access to it, or any proprietary interest. Mere presence with the 1st accused or arrest on a tip-off cannot found constructive or joint possession, which must rest on proved facts rather than suspicion or conjecture.
Whether the intended use prejudicial to public order was proved
Not proved. No evidence of attempts to sell, use or transfer the firearm, and intention cannot be inferred from mere possession.
The prosecution alleged the accused were planning to sell the pistol but led no evidence of negotiations, a prospective buyer, price or attempted transfer. The ballistic evidence linked the firearm to no offence. The court accepted that a completed offence need not be shown, but held that intention must be inferred from proved circumstances, which were absent here.
Burden and standard of proof
The burden remained throughout on the prosecution and the case fell below the beyond-reasonable-doubt threshold.
The court cautioned against shifting the burden of proof to the accused, who were not required to explain who owned the firearm or why it was in the ceiling. Those matters were relevant only in assessing the prosecution case. The ultimate burden of proving every essential ingredient beyond reasonable doubt remained with the prosecution, which it failed to discharge.
Legal principles established
#- Possession under the Firearms Act may be actual or constructive; constructive possession requires evidence from which knowledge and control can safely be inferred.
- Mere presence in the company of an accused or arrest on a tip-off cannot establish constructive or joint possession; inference must rest on proved facts, not suspicion.
- A tip-off justifies investigation but is not itself proof of the facts alleged.
Court orders
#- 1.The accused persons are acquitted of the offences under Section 215 of the Criminal Procedure Code
- Jurisdiction invoked
- Original criminal jurisdiction under the Criminal Procedure Code; charges under section 4 of the Firearms Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Nyongesa & another (Criminal Case E247 of 2025) [2026] KEMC 533 (KLR)", Case Analysis (2026). Criminal Case No. E247 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/533/eng@2026-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.