[2003] KEHC 423 (KLR)
The court found that the conviction on both counts was proper because the appellant was found in possession of the stolen chairs soon after the theft, satisfying the doctrine of recent possession, and was also found wearing police uniform without authority. However, the sentence of two years' imprisonment was deemed...
Source-derived case information.
- Citation
- [2003] KEHC 423 (KLR)
- Parties
- Appellant: Hemon Sani Onsong'o; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 265 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed in part
- Legal Topics
- Breaking and Committing Felony, Handling Stolen Property, Wearing Uniform Without Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hemon Sani Onsong'o
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for nursery breaking and committing a felony was proper.
- 2 Whether the conviction for wearing police uniform without authority was proper.
- 3 Whether the sentence imposed was excessive in the circumstances.
Ratio Decidendi
The court found that the conviction on both counts was proper because the appellant was found in possession of the stolen chairs soon after the theft, satisfying the doctrine of recent possession, and was also found wearing police uniform without authority. However, the sentence of two years' imprisonment was deemed manifestly excessive given the low value of the stolen property (Kshs. 750) and the fact that the chairs were recovered. The court therefore substituted the sentence with a term of imprisonment for the period already served and ordered the appellant's immediate release.
Court Disposition
appeal allowed in part
Orders
- Conviction on both counts upheld.
- Sentence of 2 years imprisonment set aside and substituted with term already served.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISIICRIMINAL APPEAL NO.265 OF 2003(From original conviction and sentence of the SRM’s court at Nyamira in criminal case No.448 of 2003. )HEMON SANI ONSONGO ………………………………………………. APPELLANTVERSUSREPUBLIC ……………………………………………………………… RESPONDENTJUDGMENT:The appeal is against the conviction and sentence by Keroka D.M.II’s court for the offence Nursery breaking and committing a felony c/s 306(a) Penal Code and that of wearing uniform without authority c/s 184(1) Penal Code. Accused were jailed for 2 years for the first offence and 1 month for the 2nd.
The appellant were found with chairs which were stolen from the nursery school. The learned D.M. directed himself properly when he found that the doctrine of vacant possession applies. The accused were found with the chairs soon after they were stolen. The magistrate reached the proper conclusion.
As for wearing uniform there was no dispute that the appellant was found wearing police uniform.
I found the conviction on both counts was proper and uphold the conviction. I however found the sentence was harsh. The value of the stolen chairs was only shs.750/=. The chairs were recovered. A term of imprisonment for 2 years is manifestly excessive. I therefore set aside the sentence and substitute it with a term of imprisonment for the term already served.
Accused should therefore be set at liberty forthwith. It is so ordered. KABURU BAUNI JUDGE 5/2/2004 Signed, dated and delivered on this 5th February 2004 KABURU BAUNI JUDGE 5/2/2004