[2005] KEHC 2132 (KLR)
The court found that the evidence presented at trial was sufficient to sustain the conviction of both appellants for the offence of store breaking and stealing. The appellants, as watchmen on duty at the material time, were properly convicted based on the facts and circumstances established by the prosecution....
Source-derived case information.
- Citation
- [2005] KEHC 2132 (KLR)
- Parties
- Appellant: Benson Mitobio Gitau; Appellant: Simon Kimani Macharia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 182 of 2002
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeals against conviction dismissed; appeals against sentence allowed in part.
- Judges
- JM Khamoni
- Legal Topics
- Store Breaking, Stealing, Sentencing, Penal Code Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Mitobio Gitau
Appellant
Simon Kimani Macharia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellants for store breaking and stealing was supported by sufficient evidence.
- 2 Whether the sentence imposed, including corporal punishment, was appropriate.
Ratio Decidendi
The court found that the evidence presented at trial was sufficient to sustain the conviction of both appellants for the offence of store breaking and stealing. The appellants, as watchmen on duty at the material time, were properly convicted based on the facts and circumstances established by the prosecution. However, the court held that the sentence of five years imprisonment plus three strokes of the cane was excessive. The corporal punishment was set aside, and the term of imprisonment was reduced to allow for the immediate release of the appellants. The appeals against conviction were dismissed, but the appeals against sentence were allowed in part.
Court Disposition
Appeals against conviction dismissed; appeals against sentence allowed in part.
Orders
- The convictions of both appellants are upheld.
- The sentence of five years imprisonment is reduced to a period enabling immediate release as of 2nd July, 2005.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 182 of 2002
BENSON MITOBIO GITAU……………………………………….….APPELLANT
Versus
REPUBLIC……………………………………………………………RESPONDENT
Criminal Appeal 183 of 2002
SIMON KIMANI MACHARIA…………………..…………….………APPELLANT
Versus
REPUBLIC…………………………………………………….………RESPONDENT
(Appeal from the judgment of P. Mwangulu District Magistrate I dated 25th February, 2001 in Criminal Case No. 176 of 1999 in the District Magistrate’s Court at Kigumo)
JUDGMENT
The two Appellants were among five accused persons jointly charged with the offence of store breaking and stealing contrary to Section 306(a) of the Penal Code. They were alleged to have broken into the store of Irati Coffee Factory and stolen a number of items to the total value of Ksh.123,600/= between 27th February, 1999 and 28th February 1999. They faced an alternative count of failing to prevent the commission of a felony contrary to Section 392 of the Penal Code. But having been convicted on the first count, the trial magistrate said nothing about the alternative count.
The two Appellants were employed as watchmen at the factory and the First Appellant was on duty before he handed over to the Second Appellant during the time of the breaking and stealing. I have read the evidence recorded by the trial magistrate. I have read his judgment. I have considered what was said on both sides during the hearing of this appeal. I find there was sufficient evidence to sustain the conviction of each Appellant. The convictions were therefore proper and I dismiss the appeal of each Appellant against his conviction.
On the sentence of five years imprisonment plus three strokes of the cane, I do hereby set aside the three strokes of the cane and reduce the five years to such a period as will enable each Appellant be released tomorrow 2nd July, 2005.
Dated, delivered and signed at Nyeri this
1st day of July, 2005.
J. M. KHAMONI
JUDGE