Kabiro and Another v Reginam (Criminal Appeals Nos. 1023 and 1024 of 1954)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court of Appeal held that the prosecution failed to prove that home-made guns were lethal barrelled weapons so as to constitute firearms within Emergency Regulation 8a(4). The only evidence came from a police inspector who did not claim expert qualifications and merely stated the guns had components necessary to fire ammunition. Without proper expert evidence proving lethality, the convictions could not stand. The trial judge misdirected himself by finding the guns were firearms without acceptable evidence to support that conclusion.
Outcome
Appellants set at liberty, but without prejudice to any future proceedings regarding ammunition and other articles found in the hideout
Facts
The two appellants were convicted by the Supreme Court of Kenya sitting in Emergency Assize of having under their control two home-made guns without lawful authority, contrary to Emergency Regulation 8a(1)(a). The appellants and the guns were discovered in a hideout where a quantity of ammunition was also found. The only evidence regarding the guns was given by an Inspector of Police who stated that each gun had all the components necessary to fire ammunition of appropriate calibre such as .303. The inspector did not claim to be speaking as an expert, nor were his qualifications for giving expert evidence established. The trial judge found that the two firearms were lethal weapons capable of discharging bullets and convicted the appellants on that basis. The trial judge refused his certificate under section 378(1)(b) of the Criminal Procedure Code, but the appeals were set down for hearing on the point of whether there was evidence that the home-made guns were firearms within the meaning of Emergency Regulation 8a(4).
Issues
- Whether there was any evidence that the home-made guns in question were firearms within the meaning of the definition in Emergency Regulation No. 8a(4).
- Whether expert evidence was required to prove that home-made guns were lethal barrelled weapons.
Orders
- Appeal allowed.
- Convictions and sentences set aside.
- Appellants to be set at liberty.
- Order made without prejudice to any proceedings which the Public Prosecutor may see fit to institute in respect of the other articles found in the hideout.
Rules and key headnotes
Legislation cited (6)
- Emergency Regulations, 1952 regulation 8a(1)(a)
- Emergency Regulations, 1952 regulation 8a(1)(b)
- Emergency Regulations, 1952 regulation 8a(1)(d)
- Emergency Regulations, 1952 regulation 8a(4)
- Emergency Regulations, 1952 regulation 8c(1)
- Criminal Procedure Code s.378(1)(b)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.