Court draws line between police intelligence and evidence in criminal trials

This story has significance for readers across Kenya and beyond.

Over the years, police have heavily relied on tip-offs to identify suspects and link them to various criminal offences, with intelligence often providing the first lead in investigations.

But a recent court ruling has sent investigators back to the drawing board, making it clear that a tip-off, however credible, cannot establish a nexus between a suspect and the offence on its own.

The ruling raises the evidential bar for intelligence-led prosecutions, requiring investigators and prosecutors to produce independent, corroborating evidence beyond the information that triggered an arrest.

The court noted that while a tip-off may explain why police mounted an operation, it cannot prove the truth of the information it contains.

“A tip-off is a basis for investigation; it is not itself proof of the facts alleged,” the magistrate said in a ruling delivered on August 20.

The ruling saw Boniface Masakari Nyongesa and Dennis Obelo Ekisa acquitted after the prosecution failed to prove that they knowingly possessed a firearm and ammunition.

The two had been charged with possession of a Tokarev pistol and eight rounds of ammunition without a firearm certificate, in circumstances suggesting that the firearm and ammunition were intended for use in a manner prejudicial to public order.

The alleged offences occurred on April 14, 2025, in Achunet location, Teso North, Busia County. They denied the charges when they appeared in court on April 28 and were released on a Sh500,000 bond.

Harrison Kazungu, a DCI Teso North officer, was the first prosecution witness. He told the court that he received intelligence about people suspected of possessing a firearm.

A team of about eight officers in three vehicles laid a trap in Malaba Township and arrested the two men outside an entertainment joint.

The firearm was not recovered at the scene. Kazungu said Nyongesa led officers to a house where he lived and showed them a pistol wrapped in bags.

“The accused said he had found it in the rented house and claimed the house belonged to his boss,” he testified.

Under cross-examination, Kazungu admitted that the tip-off was classified, that he did not know the accused before the incident and could not state the distance between the house and the place of arrest.

David Moses Gekara, a retired police officer, told the court that he had left the property and appointed Nyongesa as caretaker in 2021. He travelled to Malaba after DCI officers informed him that a firearm had been recovered from the house.

Gekara said Nyongesa demonstrated how he had accessed a bedroom through the ceiling and retrieved a black box. He, however, said he did not recognise the pistol and did not see it during the demonstration.

Senior Superintendent of Police (SSP) Alex Chirchir, from the ballistics department, produced a report prepared by his colleague, Kenneth Jumba.

The report identified the weapon as a Russian-made Tokarev TT-33 pistol chambered for 7.62mm by 25mm ammunition and confirmed that the recovered ammunition could be fired from it.

Chirchir said fingerprints were not analysed because the exhibits had passed through several hands, compromising their evidential value.

David Mwangi, another officer involved in the operation, said Nyongesa’s explanation for possessing the firearm did not satisfy investigators.

Charles Rutto, the investigating officer, said the operation followed intelligence shared with the County Commander.

He also told the court that investigators found an earlier report alleging that Nyongesa had threatened to shoot a man. The matter was later resolved at the police station.

Rutto further said police had received information that the accused intended to sell the firearm, but no prospective buyer was identified.

He confirmed that the informer did not testify, Ekisa was not implicated in the alleged threat and no permission from the Attorney-General had been obtained to rely on the earlier occurrence-book report.

Rutto also acknowledged that ballistic evidence would have been better placed to establish whether Nyongesa had previously used the pistol.

Nyongesa testified that he had been employed as caretaker of the house since 2021. He said some rooms were locked and that he entered his employer’s room through the ceiling, where he found a bag containing a pistol wrapped in white paper.

He said he informed Ekisa, who allegedly told him that he knew someone who could return the firearm to the Government. The two later met at Tumaini Bar, where they were arrested.

Nyongesa said he told police that the firearm belonged to his employer, but his explanation was rejected.

Ekisa denied any knowledge of the firearm or an arrangement to surrender it. He said he had gone to Tumaini Bar to buy food and was invited for a drink by Nyongesa before police arrested them.

The court found that although the firearm was recovered from premises associated with Gekara, the prosecution failed to prove that Nyongesa knowingly possessed or controlled it.

The firearm was neither recovered from his person nor from an area under his exclusive control. His demonstration of how he accessed the ceiling was insufficient, particularly in the absence of fingerprints or ballistic evidence linking him to the weapon.

The court also found a significant evidentiary gap concerning Gekara, who had previously occupied the house and testified that he surrendered his firearm upon retirement in 1996.

“Yet no evidence was adduced demonstrating the circumstances of that alleged surrender, the identity or serial number of the firearm surrendered, or otherwise excluding the reasonable possibility that the firearm recovered from the premises was the very firearm associated with Gekara,” the court said.

As for Ekisa, the court found no evidence linking him physically or constructively to the firearm. His presence with Nyongesa could not, by itself, establish joint possession.

The court also found insufficient evidence to prove that the firearm and ammunition were intended for use in a manner prejudicial to public order.

“The inference must arise from proved facts and not from suspicion or conjecture,” the court said.

It concluded that the prosecution had failed to prove beyond reasonable doubt that either accused knowingly possessed the firearm or ammunition, or that the items were intended for the alleged unlawful purpose.

The two men were consequently acquitted.

Reporting originally appeared via Nation Africa. Read the full source for additional context.