[1994] KECA 33 (KLR)
The Court of Appeal upheld the concurrent findings of the Magistrate and the High Court that the appellant knowingly disposed of aircraft parts without the owner's consent, thereby committing theft. The court found that the appellant's reliance on instructions from his superior did not constitute a valid defence, as...
Source-derived case information.
- Citation
- [1994] KECA 33 (KLR)
- Parties
- Appellant: George Itiotia Karuku; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 63 of 1994
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JM Gachuhi, AM Akiwumi
- Legal Topics
- Theft of Property, Defence of Superior Orders, Criminal Liability, Concurrent Findings, Aircraft Parts Theft
- 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
George Itiotia Karuku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was guilty of stealing parts of an aircraft belonging to another.
- 2 Whether the defence of 'superior orders' was available to the appellant under the circumstances.
Ratio Decidendi
The Court of Appeal upheld the concurrent findings of the Magistrate and the High Court that the appellant knowingly disposed of aircraft parts without the owner's consent, thereby committing theft. The court found that the appellant's reliance on instructions from his superior did not constitute a valid defence, as the evidence established that he was aware of the lack of consent from the owner. The court further held that the defence of 'superior orders' was unavailable in these circumstances, especially where the act was clearly unlawful. The appeal was therefore dismissed, and the conviction and sentence were affirmed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL OF KENYA
AT MOMBASA
CRIMINAL APPEAL 63 OF 1994
GEORGE ITIOTIA KARUKU………………………............…..APPELLANT
AND
REPUBLIC……………………......................................…RESPONDENT
(Appeal from a Judgment, Order, or as the case may be) of the High Court of Kenya at Mombasa (Mr. Justice T. Mbaluto) dated 15th October, 1993
IN
H.C.CR.A. NO. 261 OF 1993)
JUDGMENT OF THE COURT
This is an appeal from the decision of the High Court in which the learned judge upheld the finding of the Magistrate to the effect that the appellant had knowingly disposed of by selling, and thereby committing the offence of stealing parts of an aircraft, which he well knew did not belong to him or to his superior whom he alleged, had asked him to cut up the aircraft. He also upheld the Magistrate's conclusion that the defence of "superior orders" was in the particular circumstances of the case, unavailable to the appellant. Even if the appellant's superior had instructed the appellant as alleged by the appellant, there was sufficient independent evidence which established that the appellant disposed of parts of the aircraft knowing full well that this was without the consent of owner of the aircraft.
We have there two concurrent findings of fact with which more over, we are in full agreement.
The appellant's grounds of appeal is to the effect that he did not demolish the aircraft on his own and sold the parts on the instructions of his superior. It may be well be that the appellant thought that the aircraft had been abandoned, but the circumstances of the case show clearly that this is not a case of "finders Keepers" on the basis of the concurrent finding of fact, we cannot but agree with the learned judge that the defence of "superior orders", as was indeed the same conclusion that the magistrate came to, cannot avail the appellant.
In the result, we cannot but come to the conclusion that the appeal must be dismissed.
It is so ordered.
Dated and delivered at Mombasa this 18th day of July, 1994
J.M. GACHUHI
…………………………
JUDGE OF APPEAL
R.S.C. OMOLO
…………………………
JUDGE OF APPEAL
A.M. AKIWUMI
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR