[2017] KEHC 259 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMINAL APPEAL NO.108 OF 2016

DUNCAN MWENDA KERAITHE..............................APPELLANT

VERSUS

REPUBLIC..................................................................RESPONDENT

(From Original Conviction and Sentence in Criminal Case No.400 of 2016 of the Chief Magistrate’s Court At Meru)

JUDGEMENT

The appellant was charged with two counts of burglary Contrary to Section 304 (2) of the Penal Code and two counts of stealing contrary to section 279(b) of the Penal Code. The particulars of all the counts were that the appellant on the night of 22nd February 2016 at Makutano Market in North Imenti Sub County within Meru County jointly with another not before the Court broke and entered the dwelling houses of Irene Mwendwa and Feannoue Walele and stole from those premises several personal items and household goods. The trial Court convicted the appellant on all the four counts and sentenced him to serve five years imprisonment each for the counts of burglary and seven years imprisonment for each of the two counts of stealing.

The grounds of appeal are:

(i) The trial Court failed to observe that no exhibit was recovered from the appellant and that no inventory was produced.

(ii) The prosecution failed to produce the owner of the motor cycle where the alleged exhibits were recovered.

(iii) The trial Court failed to consider that apart from the complainants no other independent witness testified.

(iv) The prosecution case was not proved as it is full of contradictions and discrepancies.

(v) Section 211 of the Criminal Procedure code was not complied with.

In his submissions the appellant states that PW1 alleged that there were about 40 people at the scene. None of them was called to testify yet these were eye witnesses. The appellant was not clearly identified as the light was from a street lamp. The distance from the street lamp to the third floor of the building was far for someone to identify the appellant. The case was simply framed against the appellant. The source of light was not sufficient enough for positive identification taking into account the fact that there were many people.

It is also submitted that no exhibit was recovered from the appellant. The complainant did not produce any receipts or identification documents for the alleged recovered items. The prosecution evidence is full of contradictions about the time of the offence and the value of the stolen items. The appellant informed the trial court that he had no faith with the court but he was ignored. When he was cross examining witnesses his questions were not being recorded.

Mr. Odhiambo, prosecution counsel opposed the appeal. Counsel submitted that the appellant was found at the scene. He was arrested and took people to where a motorcycle was parked which was being used to ferry the stolen items.

This is a first appeal and the court has to consider the evidence afresh and make its conclusion. PW1 Feannoue Walele was the complainant in counts three and four. He testified that on the 22nd of February 2016 he was working at Bradegate restaurant where he is the chef. He left at about 8. 20pm and went to his house which is about 20 metres away. He found many people and there was noise coming from the third floor. He heard people shouting thief thief. There was light from the street light and he could see someone who had been injured. He saw two AP officers on patrol and informed them about the incident. He was informed by his neighbour that some houses had been broken into. He checked his house and found that the lock had been removed. He found that his two pairs of shoes, a watch and a sonny home theater had been stolen. The appellant told them that there was a car outside. They went downstairs and found that there was a motor cycle. His neighbour’s speakers were found on the motor cycle. They went back to the third floor where they had left a bag and found that one of his pairs of shoes was in the bag. The other items were not recovered. He estimated the cost of the stolen items to be Ksh.44,300/=.

PW2 Irene Mwendwa was working at Equatorial Hotel in Makutano. She was on duty on 22nd February 2016 when her neighbour called and informed her that someone had been found in her house. She went home and found the appellant had been arrested and tied up by neighbours. She checked her house and found her woofer, 6kgs cylinder, decoder, a bag which had Ksh.5,000/= and speakers missing. The appellant told them that he was with another person who had gone with other items. He took them to a motor bike where her speakers were recovered. There was security light outside the house.

PW3 Cpl. Job Ondieki was stationed at the Meru Police Station. He investigated the case. On the 22nd February 2016 he was on patrol at Makutano area at about 9. 00pm. He heard people making noise from a storey building. He went to check and found people on the balcony. He saw someone tied with ropes on the metal rails. The crowd wanted to lynch him. He had been beaten and was bleeding. He was told that the person had stolen from the building. The man said that the stolen items were in a car outside. He came out and saw a motor bike where they recovered two small speakers which were identified by PW2 to be hers. The appellant was arrested and taken to the Police Station. He knew the appellant as he had been charged with an offence of robbery with violence in Meru Court and had escaped. There was a warrant of arrest for him.

The appellant was put on his defence. He told the Court that he had no faith in the Court and he will not say anything. He opted to remain silent.

The issue for consideration by this court is whether the prosecution proved its case beyond reasonable doubt. The evidence establishes that the premises of the two complainants were broken into and their items were stolen. PW1 was able to recover his pair of shoes. PW2 had her speakers recovered. The appellant contends that the identification was not proper and that independent witnesses did not testify. From the evidence of PW1, PW2 and PW3 it is established that the appellant was arrested at the scene. The appellant informed the witnesses that there was a car waiting downstairs. What was there was a motor cycle. The speakers for PW2 were recovered on the motor cycle. The argument by the appellant that the prosecution did not call the owner of the motorcycle to testify cannot stand. It is the appellant who took the witnesses including PW3, a Police officer, to the motor bike.

It is submitted by the appellant that no exhibits were recovered from him and no inventory was produced. The evidence shows that the appellant was arrested at the scene and was about to be lynched by members of the public. The shoes belonging to the appellant were recovered in a bag where the appellant was arrested. These were used items and they were positively identified by the complainants. There was no need to produce the purchase receipts for the shoes and the speakers.

The record of the trial Court shows that the appellant was put on his defence and Section 211 of the Criminal Procedure Code was explained to him. He opted not to testify. It does not follow that when a party alleges that he has no faith with the court which is hearing his case then the court should disqualify itself. The trial was fair and the appellant was accorded the opportunity to cross examine the witnesses and also to defend himself.

From the evidence on record, I do find that the prosecution proved its case beyond reasonable doubt against the appellant. Some of the stolen items were not recovered. The appellant told PW3 that he had another person who was ferrying the stolen items elsewhere. I do find that the appellant was arrested at the scene and was properly identified as the thief. The conviction was proper. The appellant did not tender any evidence. The prosecution evidence did prove the case beyond reasonable doubt.

On the issue of sentence, the trial Court sentenced the appellant to serve five years imprisonment for the two counts of burglary and seven years imprisonment each for the two counts of stealing. The trial Court also ordered that the sentences are to run concurrently. In essence therefore the appellant shall serve a maximum of seven years imprisonment. According to PW3, the appellant had absconded from another case of robbery with violence.There was a warrant of arrest against the appellant. He was arrested while committing another offence. I do find that the sentence meted out by the trial court is proper.

In the end I do find that the appeal lacks merit and is hereby disallowed.

DATED AND SIGNED AT MARSABIT THIS 15th DAY OF SEPTEMBER 2017

SAID CHITEMBWE

JUDGE

DATED, SIGNED AND DELIVERED AT MERU THIS 5TH DAY OF OCTOBER, 2017

A. MABEYA

JUDGE