[2013] KEHC 1380 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO.204 OF 2012

JACKSON MAINA TATHA ........................................................APPELLANT

VERSUS

REPUBLIC.................................................................................RESPONDENT

(AN APPEAL ARISING FROM THE ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE NO.769 OF 2010 AT THE SENIOR RESIDENT MAGISTRATE’S COURT AT BARICHO ON 21. 2.2011

JUDGMENT

The appellant herein JACKSON MAINA TATHAhad been charged jointly with STEPHEN MUCHOKI WAGOCHO in two counts with the offence of burglary contrary to section 304(2) and stealing contrary to section 279(b) of the penal code.

In the first count, the particular’s thereof alleged that on the night of 19th and 20th August,2010 at Sagana Township in Kirinyaga District within Central Province ,jointly with others not before the court ,the appellant and his co-accused broke and entered the Kiosk of PETERSON MWANGI KORI with intent to steal therein and did steal therein , 2 bicycle make Raja, 3 bicycle tubes , 22 wires, 6 rubber breaks, 2 axle rear nails, 2 rims valued at kshs 4,750 the property of the said Peterson Mwangi Kori.

In the second count, the particulars of the offence alleged that on the same night of 19th and 20th August, 2010 at Sagana Township ,the accused persons jointly withothers not before the court broke and entered the kiosk of Jane Maina Wangui with intent to steal therein and did steal therein two sacks of charcoal valued at kshs 1,800

the property of the said Jane Maina Wangui .

The appellant who was the 1st accused in the lower court also faced an alternative charge of handling stolen goods contrary to section 322(2) of the penal code in that on 20th August , 2010 at Miembeni village in Kirinyaga District within Central province otherwise than in the course of stealing dishonestly received or retained 1 bicycle make Raja , 3 bicycle tubes, 22 wires , 6 rubber breaks, 2 axle rear nails, 2 rims knowing or having reason to believe them to be stolen goods.

The matter proceeded to full trial and on 21st February 2011, the trial magistrate Honourable J.N. Mwaniki convicted the appellant in the first count and sentenced him to 5 years imprisonment in each limb of the offence. The sentences were to run concurrently.

The appellant was acquitted of the charges in the second countand no finding was made in respect of the alternative count.

His co-accused Stephen Muchoki Wagocho was also acquitted of the charges in each count for lack of sufficient evidence.

Following his conviction and sentence, the appellant filed this appeal raising nine grounds of appeal which can be condensed into one main groundcapturing his main complaint. The grounds considered as a whole show that the appellants major complaint was that the learned trial magistrate erred in law and in fact in failing to properly evaluate the evidence presented before him and thereby convicted him on the basis of insufficient evidence .

When prosecuting hisappeal, the appellant relied on what he referred to as “written submissions” but which turned out to be supplementary grounds of appeal. Besides duplicating what he had stated in his original grounds of appeal ,theappellant introduceda few additional grounds including the one listed as ground NO. 4 in which he claimed that the trial magistrate erred in law in convicting and sentencing him on a defective charge as the evidence on record pointed to an offence of kiosk breaking and committing a felony and not the offence for which he had been convicted.

The appeal was opposed by the state through M/S Macharia state counsel . In opposing the appeal, M/S Macharia did not address the appellants complaint that he had been convicted on a defective charge. She submitted that the evidence before the trial court proved the charges preferred against the appellant beyond any reasonable doubt and urged this court to confirm both the conviction and sentence.

Briefly, the prosecution case was that the complainant in count 1 PETERSON MWANGIwho testified as PW1 owned a shop also referred to as ‘’a kiosk’’ in which he carried out the business of bicycle repairs and selling of bicycle accessories.

On the night of 19th and 20th August2010 ,he received information that his kiosk had been broken into. He went to the shop the following morning and confirmed the information as some timber had been removed. On checking, he found that some charcoal, a bicycle and bicycle accessories had been stolen. He found a cap and a torch inside the shop and the cap was said to belong to the appellant. The appellant wasarrested on the same day and was escorted to Sagana D.O’s office where he was handed over to PW4 APC JOHN MUTAI. The appellant then led PW1, PW2 and PW4 and other members of the public to his house where a bicycle, bicycle accessories in the form of tubes, wire, nails, rubber brakes andrims were recovered. The bicycle and bicycle accessories were identified by PW1 in the course of his evidence to have been his property stolen from his shop the previous night. Some charcoal which PW 1 claimed he had kept in the shop for PW2 JANE WANGUIand which had also been stolen at the same time was also recovered. PW2 in her evidence identified the charcoal recovered from the appellant’s house as the charcoal she had given to PW1 to keep for her in his shop the previous day. The recovered items were produced in evidence as exhibit 1, 2, 3 and 4.

In his defence, the appellant gave an unsworn statement in which he did not specifically deny having committed the offence as alleged. He simply denied any knowledge of the items produced in court as exhibits.He narrated how he was arrested by two people known as Maina and Kinyua and taken to a police station where he was locked upafter they allegedly demanded and took money from him for undisclosed reasons. He did not establish any connection between his alleged arrest by the two people and the allegations in the charges facing him in the trial court.

As the first appellate court, this court is enjoined to re-examine and consider the evidence adduced before the lower court afresh with a view to drawing its own conclusions as to whether the conviction being challenged was sound in law.

In Patrick & another V Republic (2005) KLR 162, the court of appeal held as follows:-

“An appellant on a first appeal is entitled to expect the

evidence as a whole to be submitted to a fresh and exhaustive

examination and to the appellate court’s own decision on the

evidence. It is not the function of first appellate court merely

to scrutinize the evidence to see if there was some evidence

to support the lower court’s findings and conclusions: It must

make its own findings and draw its own conclusions”.

With this principle in mind, I have re-examined the evidence on record and considered the submissions made by the state and the grounds of appeal .

Looking at the charge sheet, I am inclined to concur with the appellant’s complaint that he was convicted on the basis of a defective charge. The charge sheet clearly shows that though the appellant was charged with the offence of burglary and stealing,the particulars supporting the offence instead of providing information necessary to show the nature of the offence charged, they disclosed a completely different offence of shop breaking andcommitting a felony contrary to section 306(a) of the penal code.

The offence of burglary contrary to section 304(2) of the penal code refers to the act of breaking into a dwelling house at night and cannot be supported by facts that disclose that what was broken into was a building used for other purposes other than as a human dwelling. The offence of stealing contrary to section 279(b) of the penal code can only be proved if the theft in question was committed in a dwelling house.

The particulars supporting the charges preferred in this case clearly show that the appellant was accused of having broken into a shop or kiosk belonging to the complainant and committed a felony therein namely theft of a bicycle, charcoal and some bicycle accessories.They did not allege that the appellant had broken into the complainant’s dwelling house at night and stole from therein. There was therefore a disconnect between the statement of the offence and the facts meant to support the charge.

In view of the foregoing, it is my conclusion that the charge in count 1 as framed was defective as it contravened the provisions of Section 134 of the Criminal Procedure Code which clearly provides that for a charge or information to be valid, it must contain a statement of the charge supported by particulars sufficient to give reasonable information as to the nature of the offence charged.

It is important to note that such a defect though material was curable by an amendment under Section 214 of the Criminal

Procedure code.

In this case however, the trial proceeded from beginning to end without such an amendment beingeffected to rectify the anomaly in the charge with the result that the appellant was eventually convicted on the basis of a defective charge. This was an error of law on the part of the trial magistrate who failed to recognize the defect in the charges before entering a conviction against the appellant. Such a conviction was null and void and cannot be allowed to stand.

Having re-examined the evidence on record as I was required to do,It is my finding that the evidence proved beyond doubt that the appellant was found in possession of property stolen from the complainants shop on the day following their theft. The appellant did not deny having led PW1 and other people to the house where the exhibits wererecovered.The appellant claims that the house in which those items were recovered did not belong to him. Whether or not the house belonged to him either in his capacity as a tenant or owner thereof is in my view irrelevant or immaterial because what is important is that the appellant is the person who led the police officer and other persons to the house in which the stolen items were recovered. This means that he had knowledge of the stolen property and the house in which they were kept. If he is not the one who had kept the stolen property there or the house did not belong to him. It logically follows that he had either participated in storing the items in that house or that they had been kept there with his knowledge.

In Gachuru V R (2005) 1KLR 688,the court of appeal in expounding on the definition of possession stated thus:

“To be in possession of or “have in possession” includes not

only having in one’s own personal possession, but also

knowingly having anything in any place (whether belonging

to or occupied by oneself or not) for the use of benefit of

oneself or of any other person”.

In view of the foregoing,It is my finding that the evidence on record supported the alternative charge of handling stolen property contrary to Section 322(2) of the Penal Code. The evidence which was undisputed clearly shows that the appellant handled the goods stolen from the complainant’s shop dishonestly by retaining them or causing them to be retained in a certain house knowing that they were stolen property.That is why immediately uponhis arrest, he led the prosecution witnesses to the house in which they were recovered and this may also explain why he did not attempt to give an explanation in his defence regarding how he had come to be in their possession. It is therefore my finding that theevidence onrecord proves the offence charged in the alternative count to the required standard.

In the circumstances, I hereby set aside the conviction and sentence in count 1 and substitute it with a conviction for the offence ofhandling stolen goods contrary to Section 322(2) of the Penal Code.

The appellant according to the lower court’s record is a first offender andconsidering that the stolen items were recovered, I finda sentence of 3 years imprisonment appropriate for the offence. The appellant is therefore sentenced in the alternative count to serve 3 years imprisonment effective from the date of his initial conviction.it is so ordered.

C.W GITHUA

JUDGE

DATED, SIGNED and DELIVERED at KERUGOYA THIS 6TH NOVEMBER,2013in the presence of:-

The appellant

M/S Sitati for the state

Kariuki Court Clerk