Esekon v Republic (Criminal Appeal E043 of 2022) [2025] KECA 1499 (KLR)
The bottom line
#Kenya's Court of Appeal acquitted a hitchhiker convicted of firearm possession, confirming prosecutors must prove you knowingly controlled a weapon, not just that one was nearby.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in holding that the appellant was found in possession of firearms and ammunition
- 2.Whether the learned Judge erred in holding that there was no evidence that the firearms and ammunition were loaded into the vehicle at the start of the journey
- 3.Whether the learned Judge failed to hold that the trial Magistrate had shifted the burden of proof to the appellant
- 4.Whether the appellant's conviction was based on conjecture rather than solid evidence
- 5.Whether the appellant's conviction is unsafe
Key legal issues
#Whether possession of firearms under the Firearms Act is a strict liability offence shifting the onus to the accused
No - possession requires a mental element ('conscious possession'); the trial court erred in treating counts I and II as strict liability offences shifting the onus.
Relying on Gunwantlal and Sanjay Dutt from the Supreme Court of India, the court held that possession of a firearm imports a mental element: the accused must have knowledge of the firearm's presence and its nature, plus physical custody or control (actual or constructive). The trial magistrate's characterization of the counts as strict liability offences that shifted the onus was wrong, and the High Court failed to correct this error, reversing the presumption of innocence.
Whether joint possession or common intention was established against the appellant
No - sections 4 and 20(1) of the Penal Code require proof of knowledge and consent; 'deemed' creates only a rebuttable presumption and the prosecution adduced no evidence of common intention or joint possession.
The learned Judge cited the definition of possession but said nothing about the rudimentary elements of knowledge and consent. The uncontroverted defence was that the appellant was a hitchhiker who boarded a vehicle already carrying other passengers, had only a handbag, did not know the occupants, and signed the inventory at the police station without knowing its contents. From these facts joint possession or common intention could not be inferred.
Whether the conviction was unsafe given the appellant's uncontroverted defence
Yes - the two courts below failed to accord due weight to the appellant's defence, which was credible and reasonably possibly true, so the conviction was unsafe and must be quashed.
The court reiterated that the prosecution bears the burden of proving guilt beyond reasonable doubt (Woolmington), and an accused must be acquitted if their exculpatory testimony can reasonably possibly be true. Weighing probabilities and the totality of the evidence, the court was satisfied the defence raised serious doubts on the prosecution case, rendering the conviction unsafe and requiring acquittal.
Legal principles established
#- Possession of a firearm under the Firearms Act requires conscious possession - physical custody or control plus knowledge and intention to possess; mere presence in a vehicle is insufficient.
- Joint or constructive possession under section 4 of the Penal Code requires proof of knowledge and consent; a statute's 'deemed' language creates only a rebuttable presumption.
- Possession of firearms offences are not strict liability offences that shift the onus to the accused; the burden remains on the prosecution to prove guilt beyond reasonable doubt.
- An accused is entitled to acquittal where their exculpatory evidence is reasonably possibly true; evidence must be evaluated in its totality, not in compartments.
- Where a firearm is found in premises or a vehicle used by the public or different persons, no burden shifts to an occupant to explain; the circumstances of each case matter.
Court orders
#- 1.Judgment of Wakiaga, J. dated 12th May 2020 in Lodwar High Court Criminal Case No. 32 of 2019 set aside in its entirety
- 2.Substituted with an order acquitting the appellant
- 3.Conviction quashed and sentence set aside
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Lodwar
- Criminal Appeal No. 32 of 2019
- Jurisdiction invoked
- Second appeal under the Court of Appeal's appellate jurisdiction over the High Court in criminal matters
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we set aside the judgement delivered by Wakiaga, J. on 12th May 2020 in Lodwar High Court Criminal Case No. 32 of 2019 in its entirety and substitute it with an order acquitting the appellant. For avoidance of doubt, the conviction is quashed and the sentence set aside.
the offense of firearm possession requires proof of "conscious possession," meaning the individual must have knowledge of both the presence of the firearm and its nature as a weapon.
A reading of section 20 (1) of the Penal Code leaves us with no doubt that the said word “deemed” used in the said provision only creates a rebuttable presumption.
It is trite law that in a criminal trial, the onus rests on the prosecution to prove beyond a reasonable doubt that the accused committed the crime accused of.
Considering the evidence in its totality, we are satisfied that the appellant’s defence was credible, and reasonably possibly true.
Issues in the judgment
#The judgment recites the accused as sentenced to '3 years and one day imprisonment' by the Magistrate, but respondent's counsel refers to a sentence of 'only 3 years' - a minor inconsistency in the record of sentence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esekon v Republic (Criminal Appeal E043 of 2022) [2025] KECA 1499 (KLR)", Case Analysis (2025). Criminal Appeal No. ELD E043 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1499/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.