Ali v Republic [1992] KEHC 97 (KLR)

REPUBLIC OF KENYA

Ali v Republic

High Court, at Mombasa

May 4, 1992

Omolo J

Criminal Appeal No. 13 of 1992

May 4, 1992, Omolo Jdelivered the following Judgment.

Omar Hiribae Ali, the Appellant herein, was tried and convicted on a charge stated to be consulting with persons in possession of firearms contrary to section 89(2) of the Penal Code. The particulars of that charge were that on the 2nd August 1991 at a bout 9 a.m. at Sala Yabal, Sala Sub-Location of Madogo Location in Tana River District, the Appellant consorted with 5 armed bandits, persons who without reasonable excuse had in their possession firearms namely a G3 and an AK47 rifles in circumstances which raised reasonable presumption that the said firearms were in intended to be used in a manner prejudicial to public order.

The brief facts on which the prosecution based its case were that 5 persons described as bandits and armed with the rifles named in the charge sheet had the previous night attached three people Abdi Dolai (PW.1), Abdi Jiro Abdi (PW.2) and Hussein Isaack (PW.3) who were herdsmen and that the bandits had tied up those 3 people and took away their cattle. The 3 persons were made to accompany the bandits and on the following morning at 9. 00 a.m. reached Tana River. The group could not cross the river with the cattle and it was alleged that they (the bandits) shouted the name of the appellant and the appellant came to the river. He then assisted the bandits to cross the river with the animals, and PW.1, PW.2 and PW.3 were released at that point. The prosecution contended that the bandits paid the appellant for his services and the payment was in the form of some cattle. On those facts the prosecution contended that the appellant consorted with the robbers.I agree with Mr. Metho, the learned Principal State Counsel, that those facts did not really constitute the charge of consorting. In ordinary usage of the word “consort”, it must mean more than an isolated act as was the case here. The appellant was apparently living around that area and it is obvious he was known in the area and this must have been in connection with crossing of the river. When he was called to the scene he found the 3 prosecution witnesses tied up and the bandits were armed with guns. It is doubtful if he could have defied their request to help them cross with their cattle. The appellant gave the names of certain persons in authority to whom he said he made a report after the bandits had gone away. The prosecution did not call any of those people to rebut the appellant’s contention and the magistrate appears to have thought that even if the appellant did report as he alleged that would not be relevant because the appellant had already consorted with the bandits. With respect to the magistrate, his conclusion on this point and not carry the matter any further.

As I have said the bandits were armed and the appellant’s contention was that he had no choice in the mater of helping them cross the river. That single act of helping the robbers cross the river did not, in my view, constitute a charge of consorting. As Mr. Metho rightly says , a charge of aiding and abetting the bandits might have stood a better chance of success. The Republic does not support the conviction of the appellant, and in my view, Mr. Metho is right. I quash the conviction recorded against the appellant, set aside the sentence imposed on him, and order that he be released from prison forthwith unless he is held for some other lawful cause.