[2004] KEHC 1118 (KLR)
The court found that the evidence against the appellant was overwhelming, with the Assistant Chief apprehending him in possession of the stolen cow shortly after the theft. The complainant positively identified the cow at the police station, confirming it was the one stolen from his boma. There were no material...
Source-derived case information.
- Citation
- [2004] KEHC 1118 (KLR)
- Parties
- Appellant: Evans Bange Monayo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 257 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction upheld; sentence reduced.
- Legal Topics
- Stock Theft, Sentencing, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Evans Bange Monayo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction was based on an exhibit not proved to have been stolen.
- 2 Whether there were contradictions and inconsistencies in the prosecution evidence.
- 3 Whether the sentence of seven years imprisonment was manifestly excessive.
Ratio Decidendi
The court found that the evidence against the appellant was overwhelming, with the Assistant Chief apprehending him in possession of the stolen cow shortly after the theft. The complainant positively identified the cow at the police station, confirming it was the one stolen from his boma. There were no material contradictions in the prosecution's evidence. However, the court considered that the appellant was a first offender, the value of the stolen cow was KES 8,000, and the cow was recovered and returned to the complainant. In these circumstances, the original sentence of seven years imprisonment was deemed excessive. The court upheld the conviction but reduced the sentence to two years...
Court Disposition
Conviction upheld; sentence reduced.
Orders
- The conviction is upheld.
- The sentence of seven years imprisonment is set aside and substituted with two years imprisonment.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APEPAL NO.257 OF 2003
(From original conviction and sentence in Criminal Case
No.33 of 2002 of theChief Magistrate’s Court at
Kisii – S. M. S. SOITA. ESQ., S.R.M)
EVANS BANGE MONAYO ……………………………………… APPELLANT
VERSUS
REPUBLIC ……………………………………………………….. RESPONDENT
JUDGMENT
The appellant was convicted by the Principal Magistrate Kisii for the offence of stealing stock c/s 278 of the Penal Code. He was sentenced to seven (7) years imprisonment.
The particulars were that on the night of 7th and 8th January 2003 at Raging sub location jointly with others he stole one cow valued at shs.8000/= property of NENWEL MOSOTA MANYURA.
In his petition of appeal the appellant stated that the magistrate erred in convicting him with an exhibit not proved to have been stolen. He further said the court did not observe contradictions and inconsistencies in the evidence tendered.
Lastly he stated that sentence of 7 years was manifestly excessive.
The State opposed the appeal on conviction and submitted that the evidence in the lower court was enough and the appellant was properly convicted. Indeed the evidence in the lower court was overwhelming. PW1 the complainant told the court that he found his cow missing from the boma early in the morning of 8th January 2003. He had tethered it in the boma the previous evening. He raised an alarm and neighbour answered him. They started to track it but lost hoof marks.
However early that same morning Zachariah Ondieki (PW2) Ass. Chief of Mwamosioma sub location was going to work at 7 a.m. When he met appellant driving a cow. It was very early and he became suspicious. He stopped and questioned him over the cow. He told PW2 he had bought it at Bridge Camp. When challenged to show where he bought it he took to his heels. He was however chased and arrested and taken to Kisii Police Station where he was detained together with the cow. The complainant later learnt about it and he went to the station and positively identified the cow. It was the same cow stolen from his boma. It cannot be true therefore that appellant was convicted for an exhibit not proved to have been stolen.
There was no contradiction in the evidence. PW2 the Ass. Chief clearly said he arrested the appellant with the stolen cow. There were no contradictions to that.
I therefore find that the appellant was properly convicted and I uphold the conviction.
As for sentence the appellant was a first offender. The value of the stolen cow was shs.8000/-. The cow was recovered and returned to the complainant. In the circumstances the sentence of 7 years imprisonment was excessive. I set the same aside and substitute it with that of 2(two) years imprisonment.
It is so ordered.
KABURU BAUNI
JUDGE.
21/7/04
Delivered on 21st July, 2004
KABURU BAUNI
JUDGE.