[2017] KEHC 1188 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

HCCRA NO. 26 OF 2017

FREDRICK OMOLLO OCHIENG...........................APPELLANT

VERSUS

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

[Being an appeal against the conviction and sentence of the Principal Magistrate’s Court at Winam

(Hon. J. Mitey RM) dated the 7th April 2017) in Winam PMCRC No. 797 of 2016]

JUDGMENT

The appellant was charged with Stealing Stock Contrary to Section 278 of the Penal Code. It was alleged that on 7th Sepember 2015 at Ufungu Village, Kolwa East Sub-location within Kisumu County, jointly with others not before court he stole six goats valued at Kshs.18,000/= the property of Tobias Aloo Ogalo.

He denied the charge but after the ensuing trial the trial magistrate found him guilty, convicted him and sentenced him to serve six years imprisonment. He appealed. His Petition of Appeal is premised on seven grounds –

1. “That the sentence imposed on me is manifestly harsh and in excessive;

2. That the trial magistrate erred in law by convicting me on the evidence of the prosecution witnesses without considering the glaring contradictions in their evidence;

3. That there is no any direct or any circumstantial evidence to link me to the said offence.

4. That the trial magistrate erred in law by failing to comply with the provisions of section 63(1)(a) of the Evidence Act;

5. That the prosecution failed to avail some of the essential witnesses thus their case not proved beyond reasonable doubt;

6. That the initial report made at the police station never contained my name as one of the suspects;

7. That my sworn evidence was not considered by the trial magistrate.”

Briefly the prosecution’s case was that on the material day at about 8AM the complainant (PW1) tethered his six goats in his father’s compound to graze. He then went to Kisumu and did not return until 4PM. When he went to get his goats he did not find. He asked around but nobody seemed to know where they had gone. He reported the matter to the area Chief but the Chief told him he was busy. When he asked his relatives he was told his brother Waore Ogallo could have taken the goats as he had been there with a motor cycle. He believed that report. The next morning at about 5AM he went to Rabuor Slaughter House hoping to find the goats there. Not finding them he reported the matter to Nyamasaria Police Station. Coincidentally when he went to his mother’s house on that day he met a cousin called Pamela Atieno (PW3) and when he asked her if she had seen his goats at the playing field she opened up and told him that while she and Solomon Ogallo were playing in the field on the material day Fredrick Ochieng (the appellant) called them and told them to untie the goats which they then helped him to load into a white motor vehicle (a Probox). When Pamela (PW3) told him this he went and found Solomon Ogalo who confirmed that they had indeed loaded the goats into a Probox on the instructions of the appellant who then left with them. The complainant informed the police but by then the appellant had left the village and the other person who had been mentioned by the children one Morris Anyonga (now deceased) was paralysed and so could not be arrested. It was not until October 2016 that the appellant was arrested in connection with another matter. He was then charged with this offence.

In his defence the appellant narrated how he found the complainant constructing culverts at his (appellant’s) gate on 20th October 2015 and warned him to remove them. He stated that the complainant retorted by saying the appellant would know who he was. Two months later the complainant’s wife was assaulted by unknown people but it was he (appellant) who was arrested and charged. He stated that the matter was registered on March 2016 to October 18th 2016. Later the complainant framed him for this offence and he was taken to Kondele Police Station where he stayed for two days. On 14th October 2016 as his finger prints were being taken the complainant together with PW2 and PW3 whom he lived with were recording statements. He contended that he tried to tell the Investigating Officer about the grudge between him and the complainant but he would not listen. He was therefore taken to court. He contended that on the date the goats were stolen he was in Ahero where he worked. His mother (DW1) recalled that sometimes in September 2015 (she could not recall the exact date) at around 4. 10PM she met the complainant and he asked her if she had seen his goats. She recalled him saying he had tethered the goats in the field but he did not find them when he went back. She also recalled that sometimes in October a culvert was constructed at the gate and when it rained water got into her homestead and destroyed her crops. She recalled that the complainant went to her home after he was abused by the appellant because of that culvert. She stated that she got her other son Paul Abuto to talk to the appellant and that the appellant told him that the complainant threatened him with dire consequences if he tried to remove the culverts. The appellant had likewise threatened the complainant.

Paul Abuto Mateng (DW3) testified and confirmed that he was called by his mother to counsel the appellant for insulting the complainant who was like a father to them and also because to him the culvert was also to their advantage. He stated that the appellant became violent and he left. He stated that he did not know about the stolen goats.

As the first appellate court I have re-evaluated this evidence albeit bearing in mind that I did not have the benefit of observing the demeanour of the witnesses. I have also considered submissions of the parties both written and oral.

I am satisfied that not only was the charge against the appellant proved beyond reasonable doubt but that the evidence is water tight. For a start it is a fact that the complainant tethered his goats to graze in a field in his father’s home only to find them missing when he went to get them later that day. It was his evidence that he looked for them and even asked if anybody might have seen where they went. Elizabeth Hellen Okello (PW5) recalled the complainant telling her his goats were missing and the appellant’s mother (DW2) confirmed the complainant went to her house and asked her about it. Secondly there is evidence that the appellant took the goats away in a vehicle. Solomon Ogalo (PW2) and Pamela Atieno (PW3) both positively identified the appellant as the person they assisted to load the goats into a vehicle after which he left with the goats. Although both are children they testified on oath after a voire dire. They were very steadfast even upon being cross-examined by the appellant and I am satisfied they were truthful. Their testimony that there was a motor vehicle involved was corroborated by Elizabeth Hellen Okello (PW5) who testified that as she rested under a mango tree she saw a white Probox passing. Although she did not know what it was doing she remembered that it stopped in an open field where children play football and that it stayed there for about 20 minutes. It cannot be that all these people had a grudge against the appellant. The two children testified that he was their relative; that they bore no grudge against him and therefore had no reason to lie against him. The trial magistrate duly considered the appellant’s defence but found it could not hold. I am also not convinced that the issue of the culvert influenced the charges against the appellant. To the contrary it is my finding that he was positively identified as the person who stole the goats. The offence occurred in broad daylight and the children knew him. I find no merit in the appeal against conviction therefore and it is dismissed.

As for the sentence it is my finding that the same is legal and that it is neither harsh nor excessive and the appeal on the sentence is also dismissed.

Signed and dated at Kisumu this 6th day of December 2017

E. N. MAINA

JUDGE

Signed and delivered at Kisumu this 7th day of December 2017

D.S. MANJANJA

JUDGE