[2011] KEHC 3736 (KLR)
The court found that the appellant was apprehended at the scene shortly after the theft, in possession of the stolen bull, and was unable to provide a credible explanation for his possession. Although the complainant could not identify the appellant as one of the thieves, the circumstances and the doctrine of recent...
Source-derived case information.
- Citation
- [2011] KEHC 3736 (KLR)
- Parties
- Appellant: Daniel Oywa Oliyaiyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 114 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; sentence reduced to period already served.
- Legal Topics
- Handling Stolen Property, Burden of Proof, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Oywa Oliyaiyi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was found handling suspected stolen property contrary to section 322(2) of the Penal Code.
- 2 Whether the conviction was supported by evidence beyond reasonable doubt.
- 3 Whether the sentence imposed was harsh or excessive in the circumstances.
Ratio Decidendi
The court found that the appellant was apprehended at the scene shortly after the theft, in possession of the stolen bull, and was unable to provide a credible explanation for his possession. Although the complainant could not identify the appellant as one of the thieves, the circumstances and the doctrine of recent possession justified the conviction for handling stolen property. The court held that the prosecution had proved the charge beyond reasonable doubt. However, the court considered the sentence of five years' imprisonment to be harsh in the circumstances, given the statutory maximum and the facts of the case, and therefore reduced the sentence to the period already served,...
Court Disposition
Appeal against conviction dismissed; sentence reduced to period already served.
Orders
- The appeal against conviction is dismissed.
- The sentence is reduced to the period already served.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL APPEAL NO. 114 OF 2009
(Appeal against both conviction and sentence of the Senior Resident Magistrate’s
Court at Butere in Criminal Case No. 371 of 2009 [G. O. OYUGI, RM])
DANIEL OYWA OLIYAYI ..................................................................................................APPELLANT
VERSUS
REPUBLIC......................................................................................................................RESPONDENT
JUDGEMENT
1. The Appellant herein, Daniel Away Oliyayiwas charged with the offence of handling suspected stolen property contrary to S. 322(2) of the Penal Code. It was alleged that on 25. 4.2009 at Ikokho village, otherwise than in the course of stealing, dishonestly retained one bull knowing or having reason to believe it to be stolen property. He was convicted and sentenced to serve five (5) years’ imprisonment and his appeal is against both conviction and sentence.
2. The evidence on record is as follows;
3. On 25. 4.2009 at 5 a.m. a bull was stolen from the home of PW1, Joseph Majimbo.He was unable to identify any of the thieves immediately but when he raised an alarm, the Appellant was apprehended nearby and the bull recovered and both were taken to Manyulia AP Camp.
4. PW3, Humphrey Amwayi Andala, was one of those who respondended to PW1’s cry for help and was present when the Appellant was apprehended. PW4, Raphael Rumba Adengo,a village elder, went to PW1’s home after the incident and reported the same to the Assistant Chief who later escorted the Appellant and the stolen bull to Manyulia AP Camp
5. I have read the Petition of Appeal and I note that there is no doubt that the Appellant was arrested at the scene soon after the incident of theft of the bull and in his defence he stated that he merely responded to the call for help by PW1. Without shifting any burden to him, that defence was incriminating. The only issue to address is whether he was found handling the stolen bull. To my mind, when a person is found moments after a theft, holding a stolen animal and he is unable to explain himself, then he is either the thief or a handler thereof. It was conceded by PW1 that he was unable to identify the Appellant during the theft and so it can only be true that the charge of handling stolen property was proved beyond reasonable doubt.
6. On sentence, I agree that it may have been harsh in the circumstances and while dismissing the Appeal on conviction, I will reduce the sentence to the period already served and order that the Appellant be released unless he is otherwise lawfully held. I do so because S.322 (2) provides for a maximum sentence of fourteen (14) years and I think that five (5) years was too harsh in the instant case.
7. Orders accordingly.
Delivered, Dated and Countersigned at Kakamega this 2nd day of February, 2011.
ISAAC LENAOLA
J U D G E