[2013] KEHC 206 (KLR)
The court found that there was no evidence directly connecting the appellant to the offence of breaking into a building and committing a felony. The only evidence implicating the appellant was the statement of the 1st accused, which was made when he was not under oath and constituted accomplice evidence. Such...
Source-derived case information.
- Citation
- [2013] KEHC 206 (KLR)
- Parties
- Appellant: Dennis Musya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 67 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Breaking and Entering, Evidence Evaluation, Accomplice Testimony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Musya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant was supported by evidence adduced by the prosecution.
- 2 Whether the trial court erred in relying on the statements of an accomplice not made under oath.
Ratio Decidendi
The court found that there was no evidence directly connecting the appellant to the offence of breaking into a building and committing a felony. The only evidence implicating the appellant was the statement of the 1st accused, which was made when he was not under oath and constituted accomplice evidence. Such evidence must be treated with caution and cannot solely form the basis of a conviction. The prosecution failed to recover any stolen property from the appellant or otherwise link him to the crime. Consequently, the conviction was not supported by the evidence, and the trial court erred in convicting the appellant.
Court Disposition
appeal_allowed
Orders
- The conviction and sentence against the appellant are set aside.
- The appellant is set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO. 67 OF 2013
DENNIS MUSYA ...............................APPELLANT
VERSUS
REPUBLIC...................................RESPONDENT
(From original conviction and sentence in Criminal Case Number 94 of 2012 in the Principal Magistrate’s Court at Kyuso - B. M. Mararo (PM) on 2nd May, 2013)
JUDGMENT
The Appellant, Dennis Musya was the 3rd Accused in Kyuso Principal Magistrate’s Court Criminal Case No. 94 of 2012. Daniel Mathembe was the 1st Accused and Mutya Meru was the 2nd Accused. They were charged with breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code; the particulars of the offence being that on the night of 6th and 7th June, 2012 at Kimu Trading Centre in Kyuso District within Kitui County they jointly broke into a building namely the shop of Jane Mumbe and committed therein the felony of theft by stealing cash kshs.7,300/= and assorted shop goods all valued at Kshs.9,000/= the property of the said Jane Mumbe.
The 1st and 2nd accused persons were each faced with an alternative charge of handling stolen goods contrary to Section 322(2) of the Penal Code.
When the matter was placed before the magistrate for plea the 1st Accused pleaded guilty and was convicted and sentenced accordingly. In the course of the trial the complainant applied and was allowed to withdraw the complaint against the 2nd Accused. The case against the Appellant proceeded to full trial after which he was found guilty and sentenced to serve four years imprisonment.
He now appeals against both conviction and sentence.
In summary, the Appellant attacks the decision of the magistrate on the ground that his conviction was not supported by the evidence adduced by the prosecution witnesses.
When the appeal came up for hearing on 17th October, 2013 Mr. Mulama for the state conceded the appeal on the ground that there was indeed no evidence connecting the Appellant with the offence.
I have reviewed the evidence adduced before the trial Court and note that the complainant (Mumbe Mwendwa) who testified as PW1 told the Court that she did not witness the break-in and the Appellant was arrested because he had been named by the 1st Accused.
PW2 James Mutua told the Court that he was present when the complainant’s stolen items were recovered from the house of the 1st Accused who then informed them that he had committed the crime with the 2nd Accused and the Appellant. On cross-examination by the Appellant he stated that nothing stolen from the complainant was recovered from the Appellant at the time of his arrest.
PW3 Peter Musili and PW4 John Mutemi Muthengi gave evidence similar to that of PW2.
PW5 Police Constable Kennedy Kimathi who arrested the Appellant informed the Court that nothing was recovered from the Appellant at the time of his arrest.
The Appellant called the 1st Accused as his witness. The 1st Accused told the Court that he committed the crime alone.
Looking at the said evidence, I agree with the counsel for the state that there was indeed no evidence to connect the Appellant with the offence with which he was charged. The learned magistrate in his judgment indicated that in pleading guilty the 1st Accused had stated that he had committed the offence with the 2nd Accused and the Appellant. The learned trial magistrate ought to have considered the fact that at that time the 1st Accused was not under oath. In any case whatever the 1st Accused told the Court ought to have been treated with caution since his was the evidence of an accomplice.
In short, the conviction of the Appellant was not based on any evidence and was thus erroneous. The appeal therefore succeeds and I set aside the conviction and sentence. The Appellant is therefore set free unless otherwise lawfully held.
Orders are issued accordingly.
Prepared, Dated and signed this 27th November 2013
W. KORIR,
JUDGE OF THE HIGH COURT
Dated and delivered on 2nd day of December, 2013
S.N.MUTUKU
JUDGE OF THE HIGH COURT