[2004] KEHC 962 (KLR)
The court found that although the appellant was not seen breaking into or stealing from the house, the circumstantial evidence—recovery of stolen items near his clothes, his leading police to further stolen property, and the discovery of a stolen receipt in his house—was sufficient to support the conviction. The...
Source-derived case information.
- Citation
- [2004] KEHC 962 (KLR)
- Parties
- Appellant: Daniel Nyanumba Ismael; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 332 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction upheld, sentence reduced
- Judges
- K Bauni
- Legal Topics
- House Breaking, Theft, Sentencing, Evidence Corroboration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Nyanumba Ismael
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 although the appellant was not seen breaking into or stealing from the house, the circumstantial evidence—recovery of stolen items near his clothes, his leading police to further stolen property, and the discovery of a stolen receipt in his house—was sufficient to support the conviction. The trial magistrate properly analyzed the evidence and reached a sound conclusion. However, the sentence of three years was deemed excessive given the value of the stolen goods and the appellant's status as a first offender according to the prosecution. The court therefore upheld the conviction but reduced the sentence to 12 months imprisonment.
Court Disposition
conviction upheld, sentence reduced
Orders
- Conviction is upheld.
- Sentence of three years imprisonment is set aside and substituted with one of 12 months imprisonment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO.332 OF 2003
(From original conviction and sentence of the SRM’s court at Nyamira in criminal
case
No.390 of 2003. )
DANIEL NYANUMBA ISMAEL ……………………………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………………………. RESPONDENT
JUDGMENT:
The appellant was convicted by the Senior Resident Magistrate Nyamira for the offence of House Breaking and stealing contrary to section 304(2) and 279(b) Penal Code. He was sentenced to three years imprisonment on each limb.
The particulars were that on the nights of 2nd & 3rd May 2003 at Bundo sub-location in Nyamira, with others, he broke into the house of JARED OKONGO MAYUYA with intent to steal from therein and did steal.
The complainant had told the court that on 3. 5.03 at 7 a.m. he found the padlock to his house had been broken. His items were stolen from the house. He reported to his father and the village elder. It had rained and there were footmarks. They followed them to the shamba of one Ismael Onsare where they found a black polythene bag hidden in tea bushes. Inside were two blankets, 2 audio cassettes, a trouser and a bible, which the complainant identified as his. They were among the items stolen from his house. Near there they found a trouser and raincoat, which were identified as those of appellant. Later when the appellant was arrested he led police to another shamba where an iron sheet was recovered.Complainant identified it. Also police searched his house and found a receipt belonging to the complainant.
The evidence of PW1 was corroborated. The stolen items were found near where the appellant’s clothes were. When arrested he led police to where the stolen iron sheet was.
A stolen receipt was found in his house. All these point to appellant’s guilt. The trial magistrate properly analyzed the evidence and reached a sound conclusion. Though the appellant was not seen breaking into and stealing from the house the circumstances leave no doubts that he committed the offence and he was therefore properly convicted. I therefore uphold the conviction.
As to sentence the appellant was jailed for three years. The prosecution had treated him as a first offender though the probation report showed he was not. The value of stolen goods was shs.7,000/=. Sentence of 3 years was excessive in the circumstances. I set aside the sentence of 3 years and substitute it with one of 12 months imprisonment.
It is so ordered.
Dated at Kisii this 24th September 2004.
KA BURU BAUNI
JUDGE
24/9/04