[2001] KEHC 307 (KLR)
The court found that the appellant was positively identified by two witnesses who never lost sight of him from the scene of the crime to his arrest, and that he was found in possession of the stolen items, which were immediately recovered and identified by the complainant. The appellant's defence of mistaken...
Source-derived case information.
- Citation
- [2001] KEHC 307 (KLR)
- Parties
- Appellant: Ali Hussein Swaleh; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 23 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; conviction upheld, sentence reduced.
- Legal Topics
- House Breaking, Stealing, Sentencing, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Hussein Swaleh
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for house-breaking and stealing was supported by the evidence.
- 2 Whether the sentence imposed was appropriate in the circumstances.
Ratio Decidendi
The court found that the appellant was positively identified by two witnesses who never lost sight of him from the scene of the crime to his arrest, and that he was found in possession of the stolen items, which were immediately recovered and identified by the complainant. The appellant's defence of mistaken identity was rejected as implausible. However, considering that the appellant was a first offender and did not benefit from the stolen goods, the court held that the original sentence of two years' imprisonment for each limb of the offence was excessive and reduced it to eighteen months, while upholding the corporal punishment order. The appeal was thus allowed only to the extent of...
Court Disposition
Appeal partially allowed; conviction upheld, sentence reduced.
Orders
- The sentence of two years' imprisonment for each limb is reduced to eighteen months.
- The sentence of one stroke of the cane is upheld.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA APPELLATE SIDE CRIMINAL APPEAL NO.23 OF 2001
(From Original Conviction and Sentence in Criminal Case No.2826 of 2001 of the Chief Magistrate’s Court at Mombasa – R.H. Ndubi, Esq., - R.M.)
ALI HUSSEIN SWALEH……………………………………..APPELLANT
=V E R S U S=
REPUBLIC…………………………………………………RESPONDENT
J U D G E M E N T
The Appellant was charged with House-Breaking and Stealing contrary to Sections 304(1) and 279(b) of the Penal Code. He was tried, convicted and sentenced to 2 years imprisonment for each limb of the offence, sentence to run concurrently. He was also ordered to receive one stroke of the cane. His appeal to this court is against both conviction and sentence.
Briefly the prosecution case was that on the 17th August, 2000 the complainant Peter Kagua locked his house at Changamwe and went on duty. This was at about 7 a.m. At about 8. 30 a.m. a group of about 4 people came and entered the complainant’s compound. They were seen by PW.2 a watchman who was on guard in the neighbourhood and who alerted PW.4 another watchman. A few moments later they saw the Appellant being handed over a carton while at the gate to the compound of the complainant. PW.2 and PW.4 raised an alarm. The Appellant tried to escape but they chased him and arrested him. When the said carton which was recovered from the Appellant was opened, it was found to contain a T.V. set, a radio which were later identified by the complainant as his.He produced permits to prove the same. PW.2 and PW.4 never lost sight of the Appellant from the scene of the crime to the time he was arrested. The other men who were with the Appellant jumped through the fence at the rear of the compound of the complainant when the alarm was raised and managed to escape.
The defence by the Appellant that he was mistaken for his brother was rejected by the Trial Magistrate and rightly so. The appellant was chased from the scene of the crime and was arrested and PW.2 and PW.4 never lost sight of him until he was arrested and the stolen items recovered. The appeal against conviction is dismissed.
On sentence, the Appellant was a first offender and he never benefited from the stolen goods as the same were all recovered at sight. In the circumstances I consider the sentence of 2 years imprisonment for each limb of the offence on the higher side.
Accordingly the same is reduced to 18 months. The sentence of one stroke of the cane is not disturbed.
To that extent the appeal is allowed
. Otherwise the appeal is dismissed.
Dated and delivered at Mombasa this 14th day of September, 2001.
J.L.A. OSIEMO
J U D G E