[1995] KECA 49 (KLR)
The Court of Appeal found that there was ample evidence, accepted by both the trial magistrate and the High Court judge, that the appellant was in recent possession of the complainant's missing property, which he had come by unlawfully. The appellant failed to provide a satisfactory explanation for his possession of...
Source-derived case information.
- Citation
- [1995] KECA 49 (KLR)
- Parties
- Appellant: David Wambua Ngolocho; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 45 of 1995
- Procedural Posture
- Criminal Appeal / Second Appeal; Judgment of the Court of Appeal
- Outcome
- appeal dismissed
- Legal Topics
- Stealing From Locked Motor Vehicle, Recent Possession Doctrine, Evidence Assessment, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wambua Ngolocho
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal; Judgment of the Court of Appeal
Legal Issues
- 1 Whether the appellant was properly convicted of stealing from a locked motor vehicle contrary to section 279(c) of the Penal Code.
- 2 Whether the doctrine of recent possession was correctly applied to the appellant.
- 3 Whether the evidence supported the conclusion that the property belonged to the complainant.
Ratio Decidendi
The Court of Appeal found that there was ample evidence, accepted by both the trial magistrate and the High Court judge, that the appellant was in recent possession of the complainant's missing property, which he had come by unlawfully. The appellant failed to provide a satisfactory explanation for his possession of the items or for the presence of his hat in the complainant's car. The trial magistrate's conclusion that the property belonged to the complainant was sustainable on the evidence. Accordingly, the appeal was found to be devoid of merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU
Criminal Appeal 45 of 1995
DAVID WAMBUA NGOLOCHO ………………….....…..APPLICANT
AND
REPUBLIC ……………………………......………………..RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Mr. Justice D. M.
Rimita) dated 16th September, 1994
IN
H. C. CR. A. NO. 6 OF 1994)
***********************
JUDGMENT OF THE COURT
The appellant was convicted of stealing from a locked motor vehicle contrary to section 279 ( c )of the Penal Code and sentenced to three years' imprisonment and four strokes of the cane. His appeal to the High Court of Kenya at Nakuru (Rimita, J.) was dismissed. This a second appeal.
The complaint parked his car at the premises of Njoro Country Club at about 9. 30 a. m. on 26th July, 1992. Inside the car he left a rain coat,compact cassettes, a golf bag and golf balls. He then locked the car was went away. When he returned at about 9. 00 p. m. he opened his car and was surprised to find his driving licence on the driver's seat and some papers littered on the car's floor. On further checking he found a strange hat in his car. The complainant questioned the night guard who readily identified the hat as belonging to the appellant, a cook at the club. The night guard recalled that he had seen the appellant within the vicinity of the club at about 8. 00 p. m. of the same night. When the appellant was arrested later that night at about 11. 00 p. m. on his way to his house he was found carrying a bag which contained the complainant's missing rain coat, compact cassettes and a golf ball.
In his testimony during the trial the appellant in an unsworn statement denied the offence. He averred that the property in question was his and that the charge preferred against his was a frame up.
There is ample evidence accepted by the trial magistrate and the learned judge that the appellant was in recent possession of the complainant's missing property which he came by unlawfully. The trial magistrate's conclusion that the property belonged to the complainant is sustainable on the evidence. Moreover, the appellant did not explain how his hat was found it the complainant's car.
In our view, this appeal is devoid of merit. It is hereby dismissed.
Dated and delivered at Nakuru this 28th day of September, 1995.
J. E. GICHERU
…………………….
JUDGE OF APPEAL
P. K. TUNOI
…………………..
JUDGE OF APPEAL
A. B. SHAH
……………………….
JUDGE OF APPEAL