[2008] KEHC 2166 (KLR)
The court found that there was reasonable doubt as to whether the appellant was among the individuals chased from the house where the stolen goods were found. The evidence did not conclusively link the appellant to the premises or the stolen property, as none of the persons who chased and arrested him were called as...
Source-derived case information.
- Citation
- [2008] KEHC 2166 (KLR)
- Parties
- Appellant: David Githae Mburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 110 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- DK Maraga
- Legal Topics
- Handling Stolen Property, Burden of Proof, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Githae Mburu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly identified as being in possession of the stolen property.
- 2 Whether the prosecution proved beyond reasonable doubt that the appellant was linked to the house where the stolen goods were found.
- 3 Whether the conviction for handling stolen property was safe in the absence of direct evidence linking the appellant to the premises.
Ratio Decidendi
The court found that there was reasonable doubt as to whether the appellant was among the individuals chased from the house where the stolen goods were found. The evidence did not conclusively link the appellant to the premises or the stolen property, as none of the persons who chased and arrested him were called as witnesses, and there was no evidence that he was the only person in the video shop where he was arrested. In the absence of direct evidence connecting the appellant to the house or the stolen goods, the conviction was unsafe. The appeal was allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Criminal Appeal 110 of 2007
DAVID GITHAE MBURU.......................APPELLANT
VERSUS
REPUBLIC..........................................RESPONDENT
JUDGMENT
DAVID GITAI MBURU the Appellant was charged with two counts of breaking into a building and committing a felony contrary to Section 306A of the Penal Code. In the alternative he was also charged with handling stolen property contrary to Section 322(2) of the Penal Code. He pleaded not guilty to the charges but upon trial before the Resident Magistrate at Nyahururu, he was acquitted of the main counts but convicted on the alternative charge of handling stolen property and sentenced to two years imprisonment. He has appealed against both the conviction and sentence.
In his short submissions before me, the Appellant stated, as he did before the trial court, that he was arrested from a video shop at Nyahururu and that the house in which the stolen goods were found was not his. On his part, Mr. Mugambi for the Republic submitted that the Appellant on seeing police approach the house where the stolen goods were found ran away but after a chase he was arrested by members of the public and later rearrested by PW3. He therefore finds no merit in this appeal and urged me to dismiss it.
There is no dispute that PW1’s office was broken into twice and several items stolen therefrom. On both occasions nobody saw the Appellant break and/or steal from that building. There is also no dispute that some of the stolen items were recovered from some dwelling house in Nyahururu Town. The contention in this appeal is whether or not that house belonged to the Appellant.
The evidence that links the Appellant with that house is that of PW3. He testified that on a tip-off he went to a house in Nyahururu Town and as he approached it he saw three people who on seeing him ran away to different directions. He unsuccessfully chased one of them as members of the public who had given him the tip-off also chased the others. Members of the public were able to arrest one of those people who is the Appellant.
In his defence, the Appellant stated that he was arrested in a video shop in Nyahururu Town and was nowhere near the house where the stolen goods were found.
The chase was between 7. 00 p.m. and 8. 00 p.m. on 23rd October 2006. In cross examination PW3 admitted that the Appellant was chased by members of the public into a video shop at Nyahururu Town where he was arrested. None of those people who chased and arrested the Appellant was called as a witness. There is no evidence that the Appellant was the only person in the video shop.
Having considered the evidence on record as a whole I find that there is doubt as to whether or not the Appellant was among the people who were chased from the house where the stolen goods were found. Nothing was found in that house to link him with it. In the circumstances I allow this appeal, quash the conviction and set aside the sentence. The Appellant shall be set free forthwith unless otherwise lawfully held.
DATED and delivered at Nakuru this 4th day of July 2008.
D. K. MARAGA
JUDGE