Republic v Sikuku (Criminal Case E082 of 2026) [2026] KEMC 702 (KLR)

9. PW2 No. 259261 PC Andrew Luyali of Luanda Police Post testified that on 14th January 2026, at around midnight, while on routine patrol with PW1 and PC Kenyanya, they met the Accused Person who ran away to hide behind shops. 10. They gave chase and arrested the Accused Person. He searched the Accused Person when he found with a grey waist bag carrying a catapult. He added that he also recovered a knife with a black handle under the Accused Person’s belt on the right-hand side. 11. He produced the grey waist bag, the catapult, and the knife as exhibits. 12. He conceded in cross-examination that the Accused Person was arrested between 2330hrs and midnight. 13. He also stated that the Accused Person was charged with the offence herein given that he was found with the catapult and the knife at the time of his arrest. DEFENCE CASE 14.At the close of the prosecution's case, this court found and held that the Accused Persons had a case to answer. Directions under section 211 of the Criminal Procedure Code were taken in Kiswahili in the presence of the Accused Person. 15.The Accused Persons elected to remain silent per article 50 (2) (i) of the Constitution. 16.It is given that where an Accused Person elects to remain silent, the court is still obligated to determine whether the prosecution proved its case against the Accused Person beyond reasonable doubt. This court draws inspiration from David Ochieng Aketch vs Republic [2015] eKLR, where the court observed that; “The Appellant on being put on his defence he opted to keep quiet. The right to keep quiet is a constitution right enshrined in Article 50 (2) (1) of the Constitution of Kenya 2010. It is one of the components of a fair trial neither should failure to testify be taken as an admission of guilty on an accused part. The trial Court is under a duty in such

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situation to evaluate the prosecution’s evidence and ensure that the prosecution has proved its case beyond any reasonable doubts…” ANALYSIS AND DETERMINATION 17. This court has given due regard to the evidence on record. 18. This court notes that the Accused Person was charged under section 8 (1) of the Penal Code instead of section 308 (1) of the Penal Code. The foregoing may tempt one to conclude that the charge sheet on record was fatally defective. 19. The law in this jurisdiction on whether a charge sheet is defective or not is that the test of whether a charge sheet is defective is a substantive one and not a formalistic one (see B N D v Republic [2017] KEHC 7018 (KLR)). 20. A reading of the charge sheet on record shows that the statement of the offence set out clearly that the Accused Person was facing the charge of preparation to commit a felony. This court also notes that the Accused Person sufficiently cross-examined the prosecution witnesses on their evidence in respect to the charge facing him. 21. The above demonstrates that the citing of the wrong section of the law in the statement of the offence herein did not prejudice the Accused Person in any way since the Accused Person adequately understood the nature of the charge facing. Further, the Accused Person’s defence was not prejudiced by the obvious clerical error on the citation of the relevant section of the law creating the offence herein. 22. It is against this backdrop that this court finds and holds that the charge sheet herein was not fatally defective. 23. Having dispensed with the preliminaries, this court takes the view that the next issue for determination is whether the prosecution proved its case against the Accused Person beyond reasonable doubt. 24. Section 308(1) of the Penal Code provides thus regarding the offence herein; “Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.”

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25. The Court of Appeal in Manuel Legasiani & 3 others v Republic[2000] eKLR defined the offence as follows; “The word 'Preparation' is not a term of art. In its ordinary meaning it means “the act or an instance of preparing” or “the process of being prepared”. This is the meaning ascribed to the word “Preparation” in the Concise Oxford Dictionary, Eighth Edition. To prove the offence in question some overt act, to show that a felony was about to be committed, has to be shown. Mere possession of a fire-arm not coupled with such an overt act is not an offence under section 308(1) of the Penal Code.” 26. A reading of the authorities above shows that to prove the offence herein beyond reasonable doubt, the prosecution needs to prove that at the time of arrest, the Accused Person had dangerous or offensive weapons, and the felonious intent on the part of the Accused Person or the preparation to execute a felony. 27. The first question to determine is whether the Accused Person was armed with dangerous or offensive weapons at the time of his arrest. 28. The prosecution’s evidence, which was not controverted by the Accused Person, was that at the time of his arrest, the Accused Person was found in possession of a knife, a catapult, and a bag. This begs the question of whether the said items are dangerous or offensive weapons within the meaning of the law. 29. The phrase “dangerous or offensive weapon” is not defined in section 4, the interpretation section of the Penal Code, or section 308 of the Penal Code, which creates the offence herein. 30. Courts in this jurisdiction have always resorted to section 89(1) of the Penal Code, which creates the offence of possession of a firearm or other “offensive weapon” etc and section 89(4) of the Penal Code, which defines “offensive weapon” for purposes of section 89 as follows: “any article made or adapted for use for causing injury to the person or intended by the person having it in his possession or under his control for such use”. 31. A further interpretation of what constitutes an offensive weapon can be gleaned from Mwaura and Others v Republic [1973] EA 373 where the High Court in dealing with the question of whether a panga, an iron bar, a wheel spanner, a king shaft, screw driver, a stone and a chisel were “dangerous or offensive weapon” for the purposes of the

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offence of preparation to commit a felony under Section 308 (1) of the Penal Code held at page 375 letter F as follows; “In our view “dangerous or offensive weapons” means any articles made or adapted for use for causing injury to the person such as a knuckleduster or revolver or any article intended, by the persons found with them for use in causing injury to the person”. 32. The above definition of a dangerous or offensive weapon was also followed by the Court of Appeal in John Maina Kimemia v Republic [2003] KECA 87 (KLR), where the court stated thus: “In our view the words “dangerous or offensive weapon” in Section 296 (2) of the Penal Code bear the same meaning as Section 89 (4) of the Penal Code and as construed in the case of Mwaura & Others v Republic (supra) for the purposes of Section 308 (1) of the Penal Code. There cannot be any doubt that although a knife is not made or adapted for use for causing injury to a person, it would nevertheless be a dangerous or offensive weapon for purposes of Section 296 (2) of the Penal Code if the robbers in wielding it in the cause of robbery intend to use it for causing injury to any person…” 33. Guided by the definition of whether a knife is an offensive weapon in the Kimemia case (supra), and given that a catapult is not necessarily an item made or adapted for use for causing injury to a person or to commit crime, it follows that the knife and the catapult the Accused Person was found with at the time of his arrest can only be deemed to be offensive weapons if at the time of the Accused Person’s arrest he intended to use the said items to cause injury to any person. 34. This takes this court to the question of whether the Accused Person was intending to cause injury to any person at the time of his arrest. 35. The evidence by the prosecution witnesses was that they arrested the Accused Person at around 2330hrs around Luanda market while he was simply walking home only for the Accused Person to run away on seeing the police officers. 36. It is not uncommon for people in this jurisdiction to run away on seeing police officers during odd hours. The mere fact of a person running away on seeing police officers during odd hours cannot, therefore, be construed to mean that the person who fled on

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seeing the police officers intended to commit injury to any person or commit any other crime. 37. Given the absence of evidence that the Accused Person was intending to cause injury to any person using the knife and the catapult he had at the time of his arrest, this court finds that the knife and the catapult found with the Accused Person on the date of the incident are not offensive weapons within the meaning of the law. 38. In support of the position above, this court seeks inspiration from Job Omagwa Omwamu v Republic [2017] KEHC 6832 (KLR), where Okwany J stated as follows: “The trial magistrate appeared to suggest that since the sword was found in possession of the appellant, then it automatically meant that he was preparing to commit a felony. In my humble view, being possession of a knife or sword is not an offence per se. There was no indication that any law was breached by the possession of that knife. In any case, it is not uncommon for people in the villages to walk around with weapons such as knives, pangas or rungus for their own security especially at night.” 39. The last ingredient of the offence herein is whether the Accused Person was preparing to commit an offence at the time of his arrest. 40. The prosecution’s evidence is that the Accused Person was just found walking home while carrying a knife and a catapult in his waist bag only for him to run away on seeing the police officers. 41. The question of what constitutes preparation to commit a felony was answered by the Court of Appeal in Manuel Legasiani & 3 others v Republic [2000] eKLR, where the Court of Appeal opined as follows: “The word ‘Preparation’ is not a term of art. In its ordinary meaning it means "the act or an instance of preparing" or "the process of being prepared". This is the meaning ascribed to the word ‘Preparation’ in the Concise Oxford Dictionary, Eighth Edition. To prove the offence in question some overt act, to show that a felony was about to be committed, has to be shown.” 42. Further, in Criminal Appeal 12 of 2019 David Ndiema Moikut v Republic [2019] eKLR , the Court held:

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“It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve.” 43. Finally, in P v Murray (14 Cal. 159) it was held that: “Preparation consists in devising or arranging the means or measures for the commission of the offence; the attempt is the direct movement toward the commission after the preparations are made.” 44. The common thread running through the authorities above is that for the court to find that a person was preparing to commit a felony, the court must be convinced that the Accused Person had begun to carry out their intention to commit a felony in a suitable way to bring about what they intended to achieve. 45. This court has already stated that the Accused Person was simply walking home at the time of his arrest. This court has also made a finding that the mere fact that the Accused Person fled on seeing police officers on the date of the incident cannot be construed to mean that the Accused Person was up to some mischief contrary to the law. 46. Simply put, the prosecution did not lead evidence to prove beyond reasonable doubt that the Accused Person had performed an overt act tending to show that he was about to commit a felony at the time of his arrest. 47. It would appear that the only reason why the police officers arrested the Accused Person was suspicion that by the Accused Person running away while carrying a knife and a catapult, he was preparing to commit a felony. 48. The law in this jurisdiction is well settled that suspicion, no matter how strong, is not a basis upon which a court can convict an Accused Person as eloquently stated by the Court of Appeal in Joan Chebichii Sawe v Republic Crim. App. No. 2 of 2002 thus: “The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira vs Republic (Criminal Appeal No. 17 of 1998 (unreported), suspicion

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however strong cannot provide a basis for inferring guilty which must be proved by evidence.” 49. When confronted with a situation almost similar to the one obtaining in this case, Majanja J (as he then was) in Dishon Nyambega Munene v Republic 2015 KEHC 5608 (KLR) while quashing a conviction of an Accused Person where the Accused Person had been found by police officers at night while in possession of in possession of a panga, a knife, a pair of pliers, torch and hammer stated thus: “The facts as I have outlined and which the accused accepted do not, in my view, prove the offence. The prosecution did not establish an overt act tending to show that a felony was about to be committed. The possession of the implements at night does not, of itself, constitute an offence and neither does the fact that the accused is unable to account for their possession.” 50. In addition to the above, in David Ndiema Moikut v Republic [2019] eKLR the Court held: “It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve.” 51. Turning to the facts of this case, there is no evidence on record to suggest that the Accused Person had put in motion his intention to commit a crime at the time of his arrest. That intention could have been proved beyond reasonable doubt had the Accused Person been found hiding while carrying a knife and catapult, which is not the case in this instance. DETERMINATION 52. The upshot of the foregoing is that the Accused Person is acquitted under section 215 of the Criminal Procedure Code for the offence preparation to commit a felony contrary to section 308(1) of the Penal Code. 53. The Accused Person is set at liberty unless otherwise lawfully held 54. Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 23rd day of March 2026

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T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Achieng for ODPP Accused Person C/A: Mr. Rioba

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