[2009] KEHC 384 (KLR)
The court found that although the appellant pleaded guilty to the charges of house breaking, stealing, and handling suspected stolen goods, the facts presented did not disclose how the appellant was involved in the offences. There was no evidence that the appellant was found in possession of the stolen items or any...
Source-derived case information.
- Citation
- [2009] KEHC 384 (KLR)
- Parties
- Appellant: Francis Owinyi Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; appellant to be set at liberty unless otherwise lawfully held
- Legal Topics
- House Breaking, Stealing, Handling Suspected Stolen Goods, Plea of Guilty, Conviction Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Owinyi Makokha
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the facts disclosed an offence justifying the conviction of the appellant.
- 2 Whether the conviction based on a plea of guilty was proper in the absence of evidence linking the appellant to the offence.
Ratio Decidendi
The court found that although the appellant pleaded guilty to the charges of house breaking, stealing, and handling suspected stolen goods, the facts presented did not disclose how the appellant was involved in the offences. There was no evidence that the appellant was found in possession of the stolen items or any indication of how he was arrested. The absence of such evidence rendered the conviction unsafe, as a conviction must be supported by facts that establish both the commission of the offence and the accused's involvement. The court agreed with the State Counsel that no offence was disclosed and allowed the appeal, ordering the appellant's release unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; appellant to be set at liberty unless otherwise lawfully held
Orders
- The appeal succeeds.
- The conviction is quashed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Criminal Appeal 89 of 2005
FRANCIS OWINYI MAKOKHA ::::::::::::::::::::::::::::::::::::: APPELLANT
V E R S U S
REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
J U D G E M E N T
The appellant was charges and convicted of one count of House breaking and stealing contrary to section 304 (1) and 279 (b) of the Penal Code and one count of handling suspected stolen goods contrary to section 322 of the Penal Code. He pleaded guilty and was sentenced to serve 4 years imprisonment.
The appellant relied on his grounds of Appeal and prayed that the sentence passed should not run consecutively as he was serving another sentence. Mr. Karuri, learned State Counsel did not oppose the appeal. He submitted that the facts did not disclose how the appellant was involved in the offence and that the conviction was not proper.
I have read the facts of the case whereby the complainant on 28th June, 2005 found his house padlock had been cut and some items stolen. This was at midday. He reported to the police and on 29th June, 2005 he was called the police station where he identified some of his stolen items. The facts do not mention that the accused was found in possession of the stolen items or state how the accused was arrested.
I do agree with the learned State Counsel that although the appellant pleaded guilty, no offence was disclosed. The appeal succeeds. The appellant shall be set at liberty unless otherwise lawfully held.
Delivered, Dated and Signed at Kakamega this 22nd day of October, .2009
SAID J. CHITEMBWE
J U D G E