[2008] KEHC 989 (KLR)
The court found that the conviction of the appellants for handling stolen property could not be sustained because the complainant failed to positively identify the stolen items, specifically the television, as his property. The complainant claimed to have marked the TV but did not specify the nature of the mark,...
Source-derived case information.
- Citation
- [2008] KEHC 989 (KLR)
- Parties
- Appellant: Dickson Ochieng Odhiambo; Appellant: Joshua Kibiso Ausenze; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 100 & 101 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed. Conviction quashed. Sentences set aside. Appellants to be set free unless otherwise lawfully held.
- Judges
- DK Maraga
- Legal Topics
- Robbery With Violence, Handling Stolen Property, Identification of Stolen Property, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Ochieng Odhiambo
Appellant
Joshua Kibiso Ausenze
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for handling stolen property was safe in the absence of positive identification of the stolen items.
- 2 Whether the sentences imposed on the appellants were justified in law.
Ratio Decidendi
The court found that the conviction of the appellants for handling stolen property could not be sustained because the complainant failed to positively identify the stolen items, specifically the television, as his property. The complainant claimed to have marked the TV but did not specify the nature of the mark, rendering the identification unreliable. In the absence of positive identification, the evidence was insufficient to support the conviction. Consequently, the court allowed the appeal, quashed the conviction, and set aside the sentences imposed on the appellants.
Court Disposition
Appeal allowed. Conviction quashed. Sentences set aside. Appellants to be set free unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Criminal Appeal 100 & 101 of 2006 (Consolidated)
DICKSON OCHIENG ODHIAMBO……..…..1ST APPELLANT
JOSHUA KIBISO AUSENZE…………….…2ND APPELLANT
VERSUS
REPUBLIC……………………….…………..….RESPONDENT
JUDGMENT
The Appellants,DICKSON OCHIENG ODHIAMBOandJOSHUA KIBISO AUSENZE, were with two others charged with robbery with violence contrary to Section 296(2) of the Penal Code. In the alternative each of them was also separately charged with handling stolen property contrary to Section 322(2) of the Penal Code. Upon trial the Appellants and 2 others were convicted on the alternative charges of handling stolen property. The 1st Appellant was sentenced to 7 years imprisonment while the 2nd Appellant, who had previous relevant convictions, was sentenced to 9 years imprisonment. The Appellants have appealed against that conviction and sentence. Mr. Mugambi, the learned state counsel, does not support the conviction.
Having perused the record I agree with Mr. Mugambi, the learned state counsel, that the Appellants’ conviction cannot be allowed to stand as the stolen property allegedly found with them was not positively identified by the complainant. For instance the complainant said that he had put a mark on the stolen TV which was allegedly found with the Appellants but he did not specify that mark.
In the circumstances I allow this appeal, quash the conviction and set aside the sentence. The Appellants shall be set free forthwith unless otherwise lawfully held.
DATED and delivered at Nakuru this 3rd day of October, 2008.
D. K. MARAGA
JUDGE