https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13060

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL E037 OF 2026** **BENSON OLUOCH ODUNDO…..………………………………...APPELLANT** **VERSUS** **REPUBLIC……………………………………………………..…..RESPONDENT** *(Being an appeal against the original conviction and sentence delivered on 26th March 2026 by Hon. Z. Abdul (P.M) at Kibera Chief Magistrate Court Criminal Case no. E11786 of 2024 Benson Oluoch Odundo & Noah Rajuda Adhiambo)* **JUDGEMENT** 1. The appellant was jointly charged with another not before this court with the offence of stealing a motor vehicle contrary to section 268(1) as read with section 278A of the Penal Code. The particulars are that on the 13th May 2024, along Waiyaki Way within Nairobi County, the appellant jointly with others not before this Court stole a motor vehicle registration number KAV 373B make Mitsubishi FH white in colour valued at Kshs. 4 million the property of Bernard Ocholla Okayo. After a full trial the appellant was convicted and sentenced to serve four (4) years imprisonment while his co-accused was acquitted. 2. Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. In his detailed submissions, he contended that the prosecution failed to discharge their burden of proof, that an unfair burden of proof was placed on the appellant, and that the prosecution case was marred with contradictions and that the court relied on the evidence of his co-accused to convict him. He urged the court to quash his conviction and set aside the sentence imposed. 3. This is the first appellate court and in **Okeno v. R [1972] EA 32,** the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4. The prosecution called two witnesses in support of its case. PW1, Bernice Hongo, testified that her husband, Bernard Ochola Okayo, was incapacitated following a stroke. She stated that in 2006, her husband acquired motor vehicle registration number KAV 373B, a lorry which was used for transport business until 2015 when he became ill. 5. PW1 testified that in 2023, after repairing the lorry, she learnt of a transport company in Nairobi and contacted the appellant, her uncle, to establish whether the proposed arrangement was genuine. The appellant went to Nairobi, made inquiries and informed her that the company required the vehicle for inspection and that an advance payment had been made. PW1 subsequently handed over the lorry to the appellant, who took it to Nairobi with a driver. 6. PW1 later travelled to Nairobi with the original logbook and identification documents. She stated that the intended inspection did not proceed because a caveat had been placed on the vehicle by the DCI. The appellant informed her that the lorry was at a yard along Waiyaki Way. When she sought to have it returned to Mbita, he did not produce it. She subsequently learnt that the vehicle's tracking device had been disabled. 7. PW1 further testified that Noah later called her and informed her that the lorry had been detained by a shylock. She reported the matter to the DCI and subsequently recorded her statement. She maintained that she had handed the lorry to the appellant and had not seen it thereafter. 8. In cross-examination, PW1 stated that Noah had informed her that the vehicle had been detained following a loan of Kshs. 265,000. She stated that she had met Noah at the police station and that he had contacted her concerning the vehicle. She maintained that the lorry was jointly registered in the names of her husband and Nasor Oketch. 9. PW2, No. 255614 Police Constable Evans Ochieng, testified that he was attached to the DCI Dagoretti and was the investigating officer. He stated that the matter was reported by PW1 on 28th May 2024 after motor vehicle registration number KAV 373B went missing. The vehicle had been handed to the appellant for purposes of securing transport business in Nairobi. 10. PW2 testified that the appellant had undertaken inquiries concerning the company and had informed PW1 that the vehicle required inspection at NTSA. When PW1 travelled to Nairobi and requested to see the lorry, she was taken to a yard along Waiyaki Way, but the vehicle was not found there. PW1 produced documents relating to the vehicle and recorded her statement. The appellant and Noah were subsequently arrested and charged. 11. In cross-examination, PW2 stated that the investigating officer's statement did not implicate Noah in the NTSA process. He further stated that no relationship between Noah and the owner of the yard was established. No search was conducted at NTSA, no tracker records or CCTV footage were obtained, and PW2 did not see the vehicle. 12. At the close of the prosecution case, the appellant and his co-accused, Noah, were found to have a case to answer and were placed on their defence. 13. Noah testified as DW1. He stated that he worked for a security company and was not married. He denied receiving any money or documents from PW1 or meeting her before the matter was reported. He testified that he became involved after the appellant informed him that he required money and that the lorry could be used as security. He connected the appellant to a shylock, Leonard Oketch. The appellant subsequently took the lorry to the shylock's premises with a driver. 14. Noah stated that, after the appellant failed to repay the loan, he contacted PW1 to inform her that the appellant had taken a loan using the lorry as security. He maintained that he was not a shylock, did not receive the vehicle and merely connected the appellant to the lender. He stated that the appellant gave him Kshs. 3,000 to buy a soda. 15. The appellant testified as DW2. He stated that PW1 was his niece and that he had assisted her in seeking a transport opportunity in Nairobi. He testified that he approached Noah to assist with the NTSA requirements and that Noah introduced him to Willis Gor and Leonard Oketch. Willis subsequently drove the lorry from Mbita to Nairobi. 16. The appellant stated that, upon arrival in Nairobi, they attended to the vehicle's inspection requirements. He testified that Noah informed him that Leonard had a yard along Waiyaki Way. He later accompanied Noah to meet Leonard, who informed him that the logbook was invalid and offered to obtain another one for Kshs. 89,000. PW1 subsequently travelled to Nairobi with the original logbook. 17. The appellant testified that they proceeded to NTSA to book the vehicle for inspection but were informed that the registered owner was required to make the booking. He stated that he was subsequently contacted by the DCI and that Noah had been arrested and released to assist in tracing the vehicle. He maintained that he had not taken a shylock loan in respect of the vehicle and had not signed any loan agreement on behalf of PW1. 18. After a full trial, the appellant was convicted and sentenced accordingly. 19. The appeal was canvassed by way of written submissions and there is no need to rehash them. 20. Section 268(1) of the Penal Code defines stealing as follows: **“A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.”** 1. Section 278A of the Penal Code provides as follows: **278A. Stealing motor vehicle** **If the thing stolen is a motor vehicle within the meaning of the Traffic Act (Cap. 403), the offender is liable to imprisonment for seven years.** 1. The essential elements of the offence were therefore whether the appellant took or converted the motor vehicle fraudulently, without claim of right, and whether the vehicle was capable of being stolen. The prosecution must therefore establish the taking or conversion of the property, the absence of a claim of right and the fraudulent intent accompanying the act. 2. In the present case, the evidence established that PW1 entrusted motor vehicle registration number KAV 373B to the appellant for the specific purpose of facilitating its inspection and securing a transport arrangement. The appellant consequently took possession of the vehicle and transported it from Mbita to Nairobi. The evidence further established that, instead of returning the vehicle to PW1, the appellant used it as security for a loan obtained from a shylock. 3. The appellant's co-accused, Noah, testified that he connected the appellant to the shylock and that the appellant subsequently took the vehicle to the lender. Noah thereafter informed PW1 that the vehicle had been detained as security for the loan. PW1's evidence was that she had not authorised the appellant to use the vehicle as security or otherwise dispose of it. The appellant's conduct therefore amounted to a conversion of the vehicle to his own use and was inconsistent with the limited authority under which it had been entrusted to him. 4. I have considered the appellant's defence. Without re-evaluating the evidence beyond what is necessary for purposes of the appeal, I find that the prosecution evidence established the essential ingredients of the offence beyond reasonable doubt. The appellant was entrusted with possession of the motor vehicle for a defined purpose but converted it to his own use by using it as security for a loan without the owner's authority. The absence of any lawful claim or authority to do so was established. 5. I therefore find that the trial court properly evaluated the evidence and reached the correct conclusion that the charge under section 278A of the Penal Code had been proved beyond reasonable doubt. The conviction was consequently safe and is hereby affirmed. 6. The appellant was sentenced to four (4) years imprisonment. During sentencing, the court considered the appellant's mitigation, the time spent in custody, and the fact that the appellant is a first-time offender. 7. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed. In that regard, I find that the sentence meted out was lawful. 8. The sentencing policy guideline 2023, provides as follows: **3.3.5 Non-custodial sentences – or suspended sentences - should be considered unless, in light of the nature and seriousness of the offence committed and other factors, justice would demand the imposition of a custodial sentence.** 1. I have carefully considered the record, the appellant’s mitigation and the pre-sentence report. The appellant is 67 years old and suffers from Stage 1 chronic hypertension. These circumstances, considered alongside his status as a first-time offender, are relevant to the determination of an appropriate sentence. The pre-sentence report further indicated that the appellant stands to benefit more from a rehabilitative approach under structured supervision than from continued incarceration. 2. I have also considered the nature and circumstances of the offences, the need for punishment and deterrence, and the interests of the complainant. While the offences are serious and warrant an appropriate sanction, the totality of the circumstances does not, in my view, make continued imprisonment necessary to achieve the objectives of sentencing. A probationary sentence would adequately serve the interests of rehabilitation, accountability and deterrence, while taking into account the appellant’s advanced age and medical condition. 3. Further, the complainant is not without recourse in respect of the loss occasioned by the offence. The complainant may pursue an appropriate civil claim for recovery of the value of the motor vehicle or such other relief as may be available in law. The criminal sentence should not, in the circumstances, be treated as a substitute for the civil remedies available to the complainant. 4. Considering the appellant’s age, medical condition, status as a first-time offender, the findings in the pre-sentence report, the circumstances of the offences and the remedies available to the complainant, I find that justice would be adequately served by a non-custodial sentence. 5. Accordingly, the sentence of four (4) years’ imprisonment imposed by the trial court is set aside and substituted with a probation order for a period of three (3) years, under the supervision of the Kibera Probation Officer. Orders accordingly. **Judgement dated and delivered virtually this 18th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**