Kabiro and Another v Reginam (Criminal Appeals Nos. 1023 and 1024 of 1954) [1955] EACA 319 (1 January 1955)

368

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (Vice-President), Sir Kenneth O'Connor, C. J. (Kenya), and SIR ENOCH JENKINS, Justice of Appeal-

(1) GITHENJI s/o KABIRO, (2) KAMINDO s/o GACHERE, Appellants (Original Accused Nos. 1 and 2)

$\mathbf{v}$

REGINAM, Respondent

Criminal Appeals Nos. 1023 and 1024 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Law, Ag. J.)

Firearm—"Home-made guns"—Proof—Emergency Regulations, 1952, regulations $8A(1)(a)$ and $(b)$ and $8A(4)$ .

The two appellants were convicted of having under their control two "homemade guns" without lawful authority or excuse, contrary to regulation $8\lambda$ (1) (a) of the Emergency Regulations, 1952.

Regulation $8A$ (4) of the said Regulations defines firearms as: "any lethal barrelled weapon of any description...".

The only evidence in relation to the "home-made guns" was that of an Inspector of Police, who did not claim to be speaking as an expert, that, "each has all the components necessary to fire ammunition of appropriate calibre, such as $.303$ ".

The trial Judge found that "the two firearms in question are lethal weapons" capable of discharging bullets".

In the hideout where the appellants and the "home-made guns" were found, a quantity of ammunition was also found.

Held (5-1-55).—It had not been proved that the "home-made guns" were lethal barrelled weapons so as to make them "firearms" within the definition contained in regulation $8A$ (4) aforesaid.

Per Curiam-As there was a quantity of ammunition in the hideout, it would have been advisable for the Information to have contained a count charging the accused with having the same in their control or possession under regulation $8A(1)(b)$ of the said Regulations.

Appeal allowed without prejudice to any proceedings which the Public Prosecutor might see fit to institute in respect of the other articles found in the hideout.

Appellants in person.

Brookes for respondent.

JUDGMENT (read by Worley (Vice-President)).—These two appellants, whose appeals we have consolidated, were convicted by the Supreme Court of Kenya sitting in Emergency Assize at Nyeri of having under their control two "homemade guns" without lawful authority or excuse, contrary to regulation $8A$ (1) (a) of the Emergency Regulations, 1952. There was in the Information an alternative count of consorting with unlawfully armed persons contrary to regulation 8c (1) of the same Regulations. The learned trial Judge having convicted on the first count very properly made no finding on the alternative count. He refused his certificate under section 378 (1) (b) of the Criminal Procedure Code, but the appeals were set down for hearing by a Judge of this Court on a point of law, namely, whether there was any evidence that the "home-made guns", which the appellants were found to have had under their control, were firearms within the meaning of the definition in Emergency Regulation No. 8A (4). The learned trial Judge concludes his judgment with a finding that "the two firearms in question are lethal weapons capable of discharging bullets". With respect, this finding, by terming them firearms, seems to beg the question, which was whether the articles exhibited were lethal barrelled weapons so as to make them "firearms" within the definition. Moreover, there was no acceptable evidence on which this finding could be based. The only evidence on this issue was given by an Inspector of Police who produced the two home-made guns from his custody and said, "each has all the components necessary to fire ammunition of appropriate calibre, such as .303". Mr. Brookes for the Crown-respondent has conceded that this is no evidence that the articles in question are firearms within the definition. Moreover, the witness in question did not claim to be speaking as an expert, or if he did so claim, it was not shown what were his qualifications for giving expert evidence on this question.

We think that the learned trial Judge and the prosecuting counsel in this case must have been unaware of the numerous judgments of this Court on the question of proof by expert evidence that these so-called home-made guns are lethal barrelled weapons. In the absence of such proof we must hold that the learned trial Judge misdirected himself in his finding quoted above. That being so, we have no choice but to allow these appeals and set aside the convictions and sentences, which we accordingly do.

It is surprising to us, in view of the known difficulties which sometimes occur in proving that these home-made weapons are lethal, that the information did not contain a count charging the appellants with having in their control or possession a quantity of ammunition which was also in the hideout where they and the guns were discovered.

In the instant case, it is not, of course, possible for us to substitute a conviction for the alternative charge which also involves a finding that the weapons were firearms. So far as this Information is concerned, therefore, the appellants must be set at liberty, but this order is without prejudice to any proceedings which the Public Prosecutor may see fit to institute in respect of the other articles found in the hideout.