[2008] KEHC 1526 (KLR)
The court found that the appellant was found in possession of items recently stolen from the complainant, and he failed to provide any explanation for such possession. The evidence of the complainant was corroborated by another witness, and the police were led to the appellant's house by a person found selling the...
Source-derived case information.
- Citation
- [2008] KEHC 1526 (KLR)
- Parties
- Appellant: Charles Otieno Muok; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 181 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction upheld; sentence reduced to period served; appellant released unless otherwise lawfully held.
- Legal Topics
- Handling Stolen Property, Possession of Stolen Goods, Criminal Sentencing, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Otieno Muok
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted of handling stolen property contrary to section 322(2) of the Penal Code.
- 2 Whether the sentence imposed was harsh or excessive.
Ratio Decidendi
The court found that the appellant was found in possession of items recently stolen from the complainant, and he failed to provide any explanation for such possession. The evidence of the complainant was corroborated by another witness, and the police were led to the appellant's house by a person found selling the stolen items. The appellant's defence was a mere denial, which the court found unconvincing. Therefore, the conviction for handling stolen property was upheld as safe. However, considering the appellant's poor health and the period already spent in custody since 13th June 2003, the court found it appropriate to set aside the seven-year sentence and substitute it with a sentence...
Court Disposition
Conviction upheld; sentence reduced to period served; appellant released unless otherwise lawfully held.
Orders
- The appeal against conviction is dismissed.
- The appeal against sentence is allowed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL APPEAL 181 OF 2005
CHARLES OTIENO MUOK..................................APPELLANT
VERSUS
REPUBLIC..................................................RESPONDENT
(From original conviction and sentence in Senior Resident Magistrate’s Court Oyugis
in Criminal Case No.423 of 2003 byS. O. Omwenga Esq., S.R.M)
JUDGMENT
The appellant was convicted of handling stolen property contrary to section 322(2) of the Penal Code. The particulars of the offence were that on the 13th day of June 2003 at Oyugis Township in Rachuonyo district, otherwise than in the course of stealing, the appellant dishonestly retained one radio, belt, one dotted shirt and two hair bands, knowing or having reason to believe them to be stolen.
After a full trial he was found guilty and sentenced to 7 years’ imprisonment. The evidence on record shows that on the material day at about mid night, William Otieno Njoga, PW1, was asleep in his house when he heard a knock on his main door. Those who were knocking the door identified themselves as police officer who were looking for a suspect who had fled. They ordered PW1 to open the door which he did. PW1 said that he recognized the appellant who was with one other person. They assaulted him and robbed him of Kshs.1200/= and the aforesaid items. The matter was reported to the police but the complainant did not tell the police that one of the people who robbed him was the appellant.
On 13th June 2003, PW1, met Albert Oginga Siwo (deceased) selling some of the items that he had been robbed of. The said Albert Siwo was arrested and taken to a police station. He told the police that he had been given the items to sell by the appellant. PW1 and the police proceeded to the appellant’s house and upon conducting a search therein they recovered some of the stolen items belonging to PW1.
The evidence of PW1 was corroborated by Naftali Omolo Owino, PW3. Police Constable Edwin Wawire, PW4, testified about arrest of the appellant and his deceased co-accused.
The appellant denied having been found in possession of the stolen items.
From the evidence on record, it is clear that the appellant was found in possession of some of the items that PW1 had been robbed of. The police were led to the appellant’s house
by the person who was found selling the same. The appellant did not give any explanation as to how he came to be in possession of the said items. His defence was a mere denial. I am satisfied that the appellant’s conviction was safe and I dismiss his appeal against conviction.
As regards sentence, it was not demonstrated that the same was harsh or excessive. However, I note that the appellant has been in custody since 13th June, 2003. He is in poor health. In the circumstances, I am inclined to allow his appeal against sentence. I set aside the sentence of seven (7) years’ imprisonment and substitute therefor a sentence for the period already served. The appellant is set at liberty unless otherwise lawfully held.
DATED, SIGNED and DELIVERED at KISII this 28th day of July, 2008.
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
The Appellant.
Mr. Kemo, Senior Principal State Counsel for the Republic.
D. MUSINGA
JUDGE