[2014] KEHC 1022 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO.94 OF 2013

HENRY OMWODO OGAMA …………………………………….APPELLANT

VERSUS

REPUBLIC …………………......……………………………….RESPONDENT

(An Appeal arising out of the conviction and sentence in Busia CMC.No.1082 of 2011 delivered by I.T Maisiba P.M on 19th November 2013)

J U D G M E N T

Henry Omwodo Ogama (the Appellant) is serving a jail sentence of 3 years having been convicted of the offence of Breaking into a Building and Committing a felony contrary to Section 306(a) of The Penal Code. The Appeal is against both conviction and sentence.

It had been alleged that the Appellant together with Edwin Odembo (A2) and Silas Ojasi Bakoye (A3) on divers dates between 13th September 2011 and 19th September 2011 at unknown time at Funyula Township in Busia County jointly broke and entered a building namely a store of VINCENT OGUTU OLUMBE and committed therein a felony namely theft and did steal from therein 10 tins of 20 litres paint (assorted), 8 flash doors and 15 panel doors all valued ksh404,000 the property of the said VINCENT OGUTU OLUMBE.

Vincent Olumbe (PW3) is a Building Contractor. At the time material to the offence herein, being between 13th September 2011 and 19th September 2011, he still had the custody of a construction site he was working on at Funyula. On 13th September 2011 he received a call from his wife informing him of a break into the site. The information had been passed to his wife by Nanyanga Maloba (PW1) a watchman employed by PW3 to guard the site.

On 13th September 2011 at about 6. 00pm PW1 reported for duty as a night watchman at that site. They are Jua Kali Shades. Prior to that there was a chain and padlock which locked the shades but he did not find that chain and padlock on that day. Instead he found that the gate was locked with another padlock (sliver in colour). So he could not access the shade. Dutifully he reported the matter to PW3’s wife. On the following day PW1 inquired from Fredrick Khadudu Khaduli(PW2) about the changed padlock. PW2 who was the chairman of The Jua Kali Shades was not aware about the change. PW2 himself visited the shades on September 2011 but the gate was locked with a different padlock.

PW3 who had been away at the time he received information from his wife returned to Funyula on 18th September 2011. He visited the site. He found the gate closed with changed padlocks. On making some inquiries he was told that one Edwin (Accused 2) had been seen around the premises. On talking to Edwin, Edwin told him that he had been instructed to take over the premises by a Mr Henry.

PW3 contacted the Mr. Henry and posed as a prospective customer. Henry directed him to get in touch with Edwin. On 19th September 2011, the Police, duped Henry into meeting them at the site. The Police officer who duped Henry is P.C Daniel Kago (PW4). Falling into plan Henry came to the site and after introducing himself as the caretaker for the site opened the premises and showed the premises to PW3 and PW4. Henry even had keys to some rooms in the premises. Upon opening the store, PW3 found several items missing which included 10 tins of paint, a flash door and 15 panel doors. The witness put the value of these goods at ksh.404,000/=. Thereafter, Henry was arrested by PW4. That Henry is the Appellant herein.

The Appellant gave an unsworn statement in his defence. He told Court that he instructed one Collins (Accused 3) to remove the padlock to the site after which he replaced them with another set of padlocks. He gave reasons for his action. That concerned that there was theft going on at the site, he volunteered to secure it. That he then alerted A2(who he says was an agent of building) of the action he had taken. That later he heard from A2 that PW3 was claiming that he had stolen an Engine from the site. That upon his arrest, the Police visited the site and they confirmed that except for the changed locks nothing was missing. The Appellant told Court that the charges were fabricated and motivated by some political rivalry.

In a homemade Petition, the Appellant raised 11 grounds of Appeal. These can be collapsed into the following:

That he was not informed of grounds for his arrest in breach of Article 49 (1)(a) (i) of the Constitution.

That the Prosecution evidence was hearsay, weak and unconvincing.

That the Learned Trial Magistrate failed to consider his Defence.

That Appeal was opposed.

Both the Appellant and the State addressed various aspects of the evidence each urging the Court to find in its favour. Those arguments will be considered as the Court embarks on evaluating the evidence before the Trial Court. As a first Appellate Court, this Court is obliged to evaluate that entire evidence with a view to drawing its own conclusion. Minded, however that unlike the Trial Court, this Court did not have the advantage of seeing or hearing the witnesses testify first hand. (Okeno –vs- Republic [1932] EA 32).

There is clear and undisputed evidence that the original padlock and chain to the gate of the Jua Kali Shades were removed sometime prior to 13th September 2011. The removed padlock (Exhibit 1 and chain (Exhibit 2) were found in possession of Accused 3. In its place there was a silver padlock (P Exhibit 3). On 19th September 2011, the Appellant used keys in his possession to open that silver padlock. He did this in the presence of PW3 and PW4. In his defence, the Appellant admitted that he instructed Accused 3 to remove the old padlock (P Exhibit 1 and chain (P Exhibit 2) and replace it with the silver padlock (P Exhibit 3).

At the time the Appellant replaced the padlock, the site was under the custody of PW3 the Contractor. This was confirmed by the evidence of PW1 and PW2. PW3’s evidence is that he never authorized anyone to break the existing lock or to replace it. The Appellant himself admitted that he did so on his volition and without the authority of anyone. Under Section 303 (1) of the Penal Code Breaking is defined as follows:-

“303. (1) A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever any door, window, shatter, cellar flap or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.”

Up to there it is evident that by unlocking the gate and replacing it with his own padlock, the Appellant had broken into the Jua Kali Shades.

The evidence of the complainant (PW3) is that the items allegedly stolen were stolen from a store that was within the Jua Kali Building. This is what PW2 said of the building and the PW3’s store,

“The Shades have 28 rooms each with locking system. The Contractor had his own room, which was always locked. Entering the Construction store one had to break the door and/or padlock.”

That gives a sense of the layout of the Shades. PW3 told Court that the Appellant had the keys to the door of the room he was using as the site store. This evidence was supported by PW4 when he testified,

“Henry took us round and eventually we asked him to open for us the site store. it was then Vincent – PW3 informed me that some 10 litres x 20 ltrs paint, 8 flash doors and 15 panel doors were missing.”

In his written submissions the Appellant criticized the evidence surrounding the door to the store. The Appellant submitted that the keys he allegedly used to open the site store in the presence of PW3 and PW4 were not produced as Exhibits. Secondly the Appellant posed the question, how could a break into the store have occurred if the keys to all the inner rooms were left on the doors?

PW3 stated as follows:-

“The keys to the inner rooms used to be left at the doors as they were being installed and painted”

Yet there was evidence that one of the inner room which he used as a store was under lock and key. See the evidence of PW2 quoted in paragraph 11 above. The evidence was that PW3’s store was ordinarily under lock and key. It is this room that was said to be unlocked by the Appellant using a key while in the presence of PW3 and PW4.

Did the Appellant possess a key that would open that store? PW3 and PW4 testified that after Appellant showing them round the building the Appellant opened the door to the store using a key in his possession. At trial, 3 keys (other than keys to the padlock) were produced as Exhibit 5. PW3 said that these were keys for offices within the complex. As for PW4 he testified,

“Accused 2 also had with him some keys to other inner rooms which he had shown to some potential customers (refers to MFI 1 – 5).”

Curiously neither PW3 nor PW4 categorically stated that any of the keys produced (P Exhibit 5) was the one used by the Appellant to open the store. At any rate, the two did not explain what happened to that key yet PW4 allegedly arrested the Appellant soon after he opened the door. That key was all important because it linked the Appellant to the break into PW3’s store. The Prosecution theory was that the Appellant broke into the gate of the building, thereafter broke and entered PW3’s store which was within the building and stole therefrom. Without production or explanation of the key that is said to have been used by the Appellant to gain access and entry into the store, this Court is unable to find that the Appellant broke and entered into the store. Similarly, it cannot be said that the Appellant was responsible for whatever may have been stolen from the store.

Yet the overwhelming evidence is that the Appellant, without authority of the owner, caused the chain and padlock to the Gate to be broken. He then replaced them with his own padlock. The conduct of the Appellant disclosed the commission of a known crime. The facts prove that the Appellant was guilty of willfully and unlawfully damaging the property of PW3. He was therefore guilty of an offence under Section 339(1) of the Penal Code which provides:-

“339 (1) Any person who willfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanor, and is liable, if no other punishment is provided, to imprisonment for five years.”

The provisions of Section 179 of the Criminal Procedure Code allows a Court to convict for a more minor offence than that charged. Section 179 of the Criminal Procedure Code Cap 75 provides:-

When a person is charged an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.

When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.

This Court quashes the Appellants conviction of the offence of Breaking into a Building and committing a felony contrary to Section 306 (a) and sets aside the sentence imposed. In its place and invoking the provisions of Section 179 of The Criminal Procedure Code, the Appellant is hereby convicted of the offence of malicious damage to property contrary to Section 339 of the Penal Code.

As I conclude, let me turn to the Appellants complaint that his right under Article 49 (1) (a) (i) of the Constitution were breached by the Police because he was not informed reasons for his arrest. Even if proved, the breach would not invalidate or nullify the Appellants trial. If the Appellant is aggrieved by the conduct of the Police then he should file a Constitutional Petition against those who violated his right. It is not the duty of a Criminal Court to adjudicate on those violations (Julius Kamau Mbugua –vs- Republic [2010] e KLR)

What sentence should the Appellant suffer? An offence under the provisions of Section 339 (1) of The Penal Code attracts a sentence of 5 years. At trial, The Court was advised that he was a first offender. The Appellant, in mitigation, prayed for leniency. For those two reasons I would impose a jail sentence of 24 months (2 years) with effect from 19th November 2013 when the Appellant was first convicted and jailed.

F. TUIYOTT

J U D G E

DATED, DELIVERED AND SIGNED AT BUSIA THIS 2ND DAY OF DECEMBER, 2014.

IN THE PRESENCE OF:

KADENYI ………………………………………………COURT CLERK

OWITI……………………………………………………..FOR STATE

APPELLANT PRESENT IN PERSON