[2011] KEHC 1001 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Coram: F. Azangalala J.

CRIMINAL APPEAL NO. 57 OF 2009

BETWEEN

ISAACK SAKWA:::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

AND

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

[Being an appeal from the Judgment of Hon. G.M. Mutiso, Resident Magistrate dated 11th March, 2009 at Kapsabet Principal Magistrate’s Court in Criminal Case no. 852 of 2008]

JUDGMENT

Isaac Sakwa, the appellant, was charged in the Principal Magistrate’s Court at Kapsabet with the offence of breaking into a building and committing a felony contrary to section 306 (a) of the Penal Code. He also faced an alternative charge of handling stolen goods contrary to section 322 (2) of the Penal Code. The record shows that he was charged in the said court jointly with one Solomon Liandawho passed on before the trial was concluded. I will refer to him in this judgment as “the deceased”).

The appellant and the deceased pleaded not guilty to both counts and the trial was conducted by Hon. Mutiso, then a Resident Magistrate. The deceased passed on after the prosecution had closed its case. The learned magistrate found that the appellant had a case to answer and he made an unsworn statement in which he denied committing the offence.

After analyzing the evidence adduced before him, the learned magistrate determined that the prosecution had proved, beyond reasonable doubt, the alternative charge of handling stolen goods. He accordingly found the appellant guilty of the said alternative count and convicted him. After regarding the appellant’s mitigation, the learned Resident Magistrate imposed a sentence of imprisonment for six (6) years.

The appellant was not satisfied and has appealed to this court against both conviction and sentence. When the appeal came up before me for hearing on 3/11/2011, the appellant appeared in person and relied upon his grounds of appeal. Mr. Chirchir, learned Senior State Counsel, represented the respondent state and opposed the appeal on the grounds that the appellant was convicted on sound evidence. With regard to sentence, the learned counsel submitted that the same was manifestly excessive in the circumstances.

The brief facts of the case which was presented by the prosecution before the learned magistrate was as follows;-

The complainant, Diana Mukhavani, on the material date, locked her shop after business at about 9. 00 p.m., and went home. The next day, 11th May, 2008, her neighbours including Angode Ominde, P.W.2), informed her that her shop had been broken into the previous night. She went to the shop and confirmed the neighbours’ report. She found that assorted items had been stolen among them sugar, soap, sweats, materials and juggery sugar-all valued at Kshs 10,000/=. She reported to Kaimosi Police Station.

On 4th may, 2008, at Kapkangani market, she saw a woman selling juggery sugar. She noted that the same had her seal on it. She called the police who on interviewing her were informed that she had purchased the juggery sugar from the appellant. The woman was Beatrice Mbone who testified as P.W.4. The appellant was traced and he in turn led the police to the deceased where other items were recovered which the complainant identified. The appellant was arrested by APS who took him to Kaimosi Police Station where he was re-arrested by P.C. Pius Rono (P.W.3) and subsequently charged as already stated.

On being put on his defence, the appellant denied committing the offence as already stated.

On the above facts, the learned magistrate found that the offence of handling stolen goods had been proved as required in law and convicted him as already stated. In convicting him, the learned magistrate stated as follows:-

“there is overwhelming evidence that he 1st accused handled stolen goods. P.W.4 testified that it was the 1st accused who sold the stolen juggery to her. The 1st accused confirmed that he knew of the theft when he led the police to the second accused’s house where the other items were recovered.”

The complainant’s shop was indeed broken into. P.W.2, Angode Ominde, corroborated the complainant’s testimony of the break-in and the theft and so did P.W.3, P.C. Pius Rono of Kaimosi Police Station who visited the scene the morning after the incident. The complainant lost several items which she narrated to the court. One of the items she had lost namely the juggery sugar was found with P.W.4, Beatrice Mbone, who led the police and the complainant to the appellant. The appellant in turn led the team to the deceased where other items stolen from the complainant’s shop were recovered and identified by the complainant. I cannot fault the findings and conclusion of the learned magistrate.

In the premises, I agree with the learned Senior State Counsel that the appellant was convicted on sound evidence. The evidence adduced clearly displaced his defence which was rightly rejected. The appeal against conviction is therefore dismissed.

With regard to sentence, I note that the property stolen was all valued at Kshs 10,000/=. Some of it was recovered. I concur with the learned Senior State Counsel that the sentence of six (6) years imprisonment was manifestly excessive in the circumstances. I will therefore interfere with the same. Considering that the appellant has been in custody for an aggregate period of over three (3) years taking into account the remand custody, I think the appellant has learnt his lesson.

The appeal against sentence is therefore allowed. The sentence of six (6) years imprisonment is hereby set aside and is substituted with a sentence of imprisonment for the period already served. The appellant should be released forthwith unless he is otherwise lawfully held.

It is so ordered.

DATED AND DELIVERED AT ELDORET THIS

7TH DAY OF DECEMBER, 2011.

F. AZANGALALA

JUDGE

Read in the presence of:-

The Isaack Sakwa, the appellant in person and Mr. Kabaka for the State.

F. AZANGALALA

JUDGE

7/12/2011.