[1986] KEHC 27 (KLR)
The court found that the evidence supporting the convictions for stock theft was unreliable, as the key prosecution witnesses were themselves implicated in the theft and their testimony was uncorroborated. The trial magistrate failed to exercise caution in relying on such evidence, rendering the convictions unsafe....
Source-derived case information.
- Citation
- [1986] KEHC 27 (KLR)
- Parties
- Appellant: Farah; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 508 of 1986
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed in part; convictions for stock theft quashed; conviction for assault affirmed.
- Legal Topics
- Stock Theft, Assault Causing Actual Bodily Harm, Evidence Evaluation, Witness Credibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Farah
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced was sufficient to sustain convictions for stock theft under section 278 of the Penal Code.
- 2 Whether the conviction for assault causing actual bodily harm under section 251 of the Penal Code was supported by credible evidence.
- 3 Whether the trial magistrate erred in relying on the testimony of witnesses who may have been accomplices.
Ratio Decidendi
The court found that the evidence supporting the convictions for stock theft was unreliable, as the key prosecution witnesses were themselves implicated in the theft and their testimony was uncorroborated. The trial magistrate failed to exercise caution in relying on such evidence, rendering the convictions unsafe. Consequently, the convictions and sentences for counts 1 and 2 (stock theft) were quashed and the appellant was acquitted on those counts. However, the court was satisfied that the conviction for assault causing actual bodily harm (count 3) was supported by ample and credible evidence from the complainant and other witnesses. The conviction and sentence for assault were...
Court Disposition
Appeal allowed in part; convictions for stock theft quashed; conviction for assault affirmed.
Orders
- Convictions and sentences for counts 1 and 2 (stock theft) quashed and set aside.
- Appellant to be set free forthwith unless otherwise lawfully held, in respect of counts 1 and 2.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL APPEAL NO 508 OF 1986
FARAH........................................................................APPELLANT
V
REPUBLIC...................................................................DEFENDANT
JUDGMENT
November 28, 1986 Mbaluto J delivered the following judgment.
The appellant was convicted on 3 counts, two of stealing stock contrary to section 278 and one of assault causing actual bodily harm contrary to section 251 of the Penal Code. For each of the first two counts he was sentenced to serve the mandatory 7 years imprisonment with 3 strokes and on count 3 he was imprisoned for 3 months. The terms of imprisonment on all the counts were to run concurrently. His appeal is against the convictions and sentences on all three counts.
The particulars on count 1 allege that on January 24, 1986 at Gatuanyaga Ranching Company in Kiambu District the appellant stole one cow valued at Kshs 2,000 the property of Samuel Gichia Mwega and the particulars in count 2 allege that on January 24, 1986 at the same place he stole 21 goats valued Kshs 7,000 the property of Wamengi Ngare.
The evidence in support of the charge relating to the theft of the goats was from PW 5, PW 7 and PW 9. A careful evaluation of the evidence reveals that all PW 5 admitted having assisted the appellant to get a place to keep the goats. He was a butcher and knew that the appellant owned no goats but by his own admission he took the trouble to persuade another man PW 7 to keep the goats in his house. Accordingly to the evidence of police constable Duncan Wachira (PW 8), the person who was found with the goats (PW 6) said he was keeping them for PW 5.
PW 7 admitted keeping the goats in his house and giving three of them to PW 9 and his turnboy. This was done in the absence of the appellant.Surely if PW 7 thought that the goats belonged to the appellant, he could not have been so willing to give away 3 of them to PW 9 without the appellants authority. In my view all the three witnesses PW 5, PW 7 and PW 9 were in one way or the other involved in the theft of the goats and in those circumstances their evidence implicating the appellant should have been treated with great circumspection. That the learned trial magistrate did not do so in his judgment was fatal to the conviction. He truly failed to warn himself of the dangers of relying on the evidence of these three witnesses who obviously knew more about the matter than they told the court. For example the only witness to be called in support of the 1st count ie the alleged theft of the cows PW 6 is said by PW 8 to have been found with the stolen goats; yet his witness in his evidence implicating the appellant in the theft of the cow said absolutely nothing of the goats. This makes his evidence suspect. Moreover the appellant is alleged to have been arrested by the local sub-chief and PW 6 who is a youthwinger. PW 6 was implicated in the theft of the goats by PW 8 it was in my view unsafe to base a conviction of the theft of the cow on the incorroborated evidence of this witness.
For the above reason I am not satisfied that the two counts of stock theft contrary to section 278 of the Penal Code were proved to the degree required in criminal cases. The conviction were therefore unsafe and must not be allowed to stand. Accordingly the appeal against conviction on count 1 and 2 is allowed, the convictions quashed and the sentence meted out set aside. The appellant is to be set free forthwith unless otherwise lawfully held.
As regards the conviction on count III I have carefully reviewed and evaluated the evidence in support of this charge fully satisfied that there was more than ample evidence from the complainant PW 3, PW 4 and PW 10 to prove the charge of assault causing actual bodily harm. The conviction was therefore sound and I affirm it. The sentence of 3 months imposed upon the appellant was not manifestly excessive and neither was it arrived at by application of wrong principles. I would therefore dismiss the appeal against convictions and sentence on count III in its entirety. Orders accordingly.
November 28, 1986
MBALUTO J