[2017] KEHC 2026 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 15 OF 2017

BOB MALOBA OGOLA………………………………APPELLANT

VERSUS

REPUBLIC........................................................................REPUBLIC

(From the original conviction and sentence in Criminal case No. 263 of 2017 of the Chief Magistrate’s Court at Busia by Hon. G.N Wakahiu– Chief Magistrate)

JUDGMENT

BOB MALOBA OGOLAthe appellant herein was convicted for the offence of burglary contrary to section 304(1) (b) of the Penal code.

The particulars of the offence are that on the night of 21st February 2017 at BULANDAarea TOWNSHIP Location of BUSIA County broke and entered into the dwelling house of GEORGE WABWIRE OBIJIwith intent to commit theft from therein.

He pleaded guilty to the offence and was sentenced to serve 5 years imprisonment.

The appellant was in person. He contended that the sentence was harsh.

The facts of the prosecution case were briefly as follows:

On the 21st February 2017 the complainant was in Uganda. At about midnight he received a telephone call and was informed that there were invaders at his Busia home. He mobilized his neighbours and rushed to his house on a motor cycle. Some of the intruders managed to scale the wall and fled. The appellant was not lucky and his hand was cut. A metal bar was recovered at the scene. He was arrested and taken to the police. He was charged for the offence.

The appellant pleaded guilty to the offence and was sentenced to serve 5 years imprisonment after his conviction. He now contends that the sentence was harsh.

The state through Mr. Owiti, learned counsel opposed the appeal.

Whereas section 304(1) (b) of the Penal Code provides as Follows:

having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.

I have noted that from the facts read in court, there was no entry into the complainant’s house. The facts did not therefore support the charge. The offence that was disclosed was that of attempted burglary contrary to section 304 (2) of the Penal Code. This is what he ought to have been charged with.

When the facts were read, the learned trial magistrate ought to have called for the amendment of the charge.

An attempt to commit an offence is defined under section 388 of the Penal Code as follows:

(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

The general penalty for an attempted offence is provided for under section 389 of the Penal Code as follows:

Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven year.

In the instant case no penalty is provided for the offence of attempted burglary. The offence of burglary has a penalty of 10 years imprisonment. Half of this sentence is 5 years imprisonment.

Had the appellant not pleaded guilty, I would have been persuaded to remit this case for retrial. This will not serve any useful purpose in the circumstances of this case. I find that the error is curable under section 382 of the Criminal Procedure Code. I accordingly rectify the charge to read:

Attempted burglary contrary to section 304 (2) of the Penal Code.

The maximum penalty for the offence of attempted burglary contrary to section 304(2) of the Penal Code is 5 years imprisonment. The appellant lost a hand in the process. The trial court ought to have factored this when sentencing him. I accordingly reduce the sentence to 2 years imprisonment. The appeal therefore is allowed to that extent.

DELIVEREDandSIGNEDatBUSIA this 7thdayof November, 2017

KIARIE WAWERU KIARIE

JUDGE