[2018] KEHC 119 (KLR)
The court found that although there was no eyewitness to the actual breaking, the circumstantial evidence established that the appellant, having been entrusted with the house keys and being present with others when the complainant's goods were removed, could not account for the break-in or the theft. The appellant's...
Source-derived case information.
- Citation
- [2018] KEHC 119 (KLR)
- Parties
- Appellant: H A A; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 34 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal partially allowed
- Judges
- CC Kipkorir
- Legal Topics
- Housebreaking, Stealing, Burden of Proof, 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
H A A
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of housebreaking and stealing against the appellant beyond reasonable doubt.
- 2 Whether the conviction was safe in the absence of an eyewitness to the breaking.
- 3 Whether the sentence imposed was lawful and appropriate.
Ratio Decidendi
The court found that although there was no eyewitness to the actual breaking, the circumstantial evidence established that the appellant, having been entrusted with the house keys and being present with others when the complainant's goods were removed, could not account for the break-in or the theft. The appellant's defense was a mere denial and did not rebut the prosecution's case. The conviction was therefore safe. However, considering the period already served in custody, the court held that the sentence already served was sufficient and ordered the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal partially allowed
Orders
- The sentence is reduced to the period already served.
- The appellant is to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARSEN
CRIMINAL APPEAL NO 34 OF 2017
H A A......................................................................APPELLANT
VERSUS
REPUBLIC.........................................................RESPONDENT
(Being an appeal from the judgment and sentencing of Hon. Victor Asiyo Resident Magistrate in Lamu Criminal Case No. 77 of 2015 delivered on 31/08/2017)
JUDGMENT
1. This appeal has been conceded by the State. It is my duty however to subject the evidence to a fresh review to confirm whether or not the appeal is merited.
2. The Appellant H A A and one J G A (minor offender) were charged with the offence of housebreaking contrary to section 304 (i) (b) and stealing contrary to section 279 (b) of the Penal Code. The particulars of the offence were that they broke and entered the building used as a dwelling house of Swabra Bwana Hamadi and stole various household electronics namely one television set make Samsung, DVD make Sony, Video make Auoma. They also stole a wall clock, ATM card and cash Kshs. 62,000, bringing the total value of the stolen property to Kshs 103,700/=.
3. I have reviewed the evidence before the trial court. There was no eye witness who saw both accused breaking into the house of the complainant. However there was the undisputed evidence that the complainant had requested to leave the house keys with the 1st accused who was in their shop downstairs. Both the 1st and 2nd accused were neighbours to the complainant and it came through in the evidence that it was not the first time that the complainant had entrusted them with his house keys.
4. There was also clear evidence that one A had on the material day gone to the building and asked for the 1st accused and that the three persons being the 1st and 2nd accused and the said A were seen by PW2 leaving the building. PW2 was categorical that A was carrying a sack containing some unknown items as they left the building.
5. My careful analysis of the evidence shows that the prosecution proved its case to the required standard. The accused’s defence amounted to a mere denial. Both accused could not account for the break in having had the keys to the complainant’s house at the material time. They could not also account for the appearance of one A whose company they kept even when he was carrying away the complainant’s goods in a sack.
6. I therefore find that the conviction was safe and the sentences meted out to the 1st and 2nd accused were lawful. However, I have come to the conclusion that the sentence already served by the Appellant is sufficient. She was sentenced to serve 2 years imprisonment on 15/9/2017 and has already served substantial part of it. I reduce the sentence to the period already served.
7. The appellant is set at liberty forthwith unless otherwise lawfully held.
Judgment delivered dated and Signed at Garsen on 18th day of September, 2018.
.......................
R.LAGAT KORIR
JUDGE
the presence of
Pacho Court Assistant
Appellant in person
Mr. Kasyoka for the Respondent