[2013] KEHC 7011 (KLR)
The court found that the appellant's actions on 31st December 2009 amounted to theft under Section 279(a) of the Penal Code, as he snatched the complainant's phone without permission and passed it to another who sold it. The appellant's justification that he was recovering a debt was unsupported and vague. The trial...
Source-derived case information.
- Citation
- [2013] KEHC 7011 (KLR)
- Parties
- Appellant: Ibrahim Hassan Harow; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 535 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on sentence allowed; conviction upheld; sentence to be reviewed upon verification of custody status.
- Judges
- LA Achode
- Legal Topics
- Stealing, Sentencing Principles, Theft by Servant, Evidence Assessment
- 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
Ibrahim Hassan Harow
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for stealing under Section 279(a) of the Penal Code was supported by the evidence.
- 2 Whether the sentence of 7 years imprisonment was lawful and appropriate in the circumstances.
Ratio Decidendi
The court found that the appellant's actions on 31st December 2009 amounted to theft under Section 279(a) of the Penal Code, as he snatched the complainant's phone without permission and passed it to another who sold it. The appellant's justification that he was recovering a debt was unsupported and vague. The trial court's failure to clarify whether the complainant was a minor requiring voire dire examination was noted but did not affect the substance of the evidence. While the conviction was upheld, the sentence of 7 years was deemed harsh and excessive given the value of the phone (Kshs. 7,000), and a less severe sentence was considered appropriate to serve the ends of justice.
Court Disposition
Appeal on sentence allowed; conviction upheld; sentence to be reviewed upon verification of custody status.
Orders
- The appeal succeeds on sentence.
- Appropriate orders to issue after establishing whether the appellant has been in custody since sentencing or was out on bail pending appeal.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO. 535 OF 2010
IBRAHIM HASSAN HAROW……..............................................APPELLANT
VERSUS
REPUBLIC ..................................................................................RESPONDENT
(From original conviction and sentence in criminal case Number 13 of 2012 in the Principal Magistrate’s Court at Mandera – R. Ondenyo (PM) on 19/02/2010)
JUDGMENT
Ibrahim Hassan Harow, the appellant herein lodged an appeal against conviction and sentence for the offence of stealing contrary to Section 279(a) of the Penal Code, in Cm cr. Case No. 13 of 2006 at Mandera.
The brief facts were that, on 31st December 2009 at about 14. 00 hrs, at Township location of Mandera East District within North Eastern Province, jointly with others not before the court, they stole a mobile phone make Samsung 3053 valued at Kshs,7,000/= the property of Nima Ali Noor.
Upon conviction the appellant was sentenced to serve 7 years imprisonment.
Pursuant to the appeal the appellant filed written submissions through learned counsel Mr. Omboga, in which he stated that the prosecution did not call material witnesses whose evidence would have been in favour of the appellant. That the prosecution failed to take into account the friendship between the appellant and the complainant, and that the complainant did not make any formal complaint against the appellant as required by law.
Learned state counsel Mr. Mulati responding for the state, urged that the complainant knew the appellant well, that the appellant did sell the complainant’s phone, and that the court was right in convicting him. The learned state counsel also submitted that whether or not the complainant’s mother made the first report to the police, the complainant did record her statement with the police.
I have analysed and reassessed the evidence on record to make my own findings and draw my own conclusions. It is not in dispute that the appellant snatched a phone from the complainant’s hand and dashed off with it, when the motor vehicle in which they were travelling came to a halt. It is not also in dispute that he passed the phone onto a 2nd person who subsequently sold it to a third person.
The appellant’s contention was that he took the phone to pay himself back for a phone that the complainant took from him. He was hazy on the details as to when, where and under what circumstances the complainant took his phone, necessitating the action that he took, on the fateful day.
It does not matter who made the first report to the police in the circumstances of this case because the evidence shows that the police did record the complainant’s statement and she testified in court.
There appears to have been a lapse on the part of the trial court in stating whether the complainant was a minor of tender years who required to be subjected to voire dire examination before her testimony was received or not. The fact that she was in class six on its own is not conclusive evidence of such a fact.
The upshot is that the actions of the appellant on 31st December 2009 however, amounted to theft under Section 279(a) of the Penal Code, because he had no permission to take the phone belonging to PW1 in the manner that he did, whether or not she was indebted to him. The appellant did snatch the phone which is the subject matter of this case from the person of the complainant.
On the sentence, Section 279(a) of the Penal Codeprovides for a sentence of up to 14 years imprisonment upon conviction. The sentence of 7 years imprisonment imposed by the trial court was therefore lawful. I am of the opinion however, that it was harsh and excessive in the circumstances of this case, where the phone stolen was worth Kshs.7000/=. I am satisfied that the ends of justice would still have been served by a much less severe sentence.
For the foregoing reasons this appeal succeeds on sentence, and appropriate orders will issue, once it is established whether the appellant has been in custody since the date of sentence or he was out on bail pending appeal.
SIGNED DATEDandDELIVEREDin open court this 13thday of December2013.
L. A. ACHODE
JUDGE