[2020] KEHC 470 (KLR)
The court found that the conviction on Count 1 (burglary and stealing) was unsafe because the charge was not properly founded on the correct section of the Penal Code, and the respondent rightly conceded this point. Regarding Count 2 (malicious damage to property), the court determined that the prosecution's case...
Source-derived case information.
- Citation
- [2020] KEHC 470 (KLR)
- Parties
- Appellant: Jacob Omondi Juma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 8 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; appellant to be released unless otherwise lawfully held
- Legal Topics
- Burglary, Malicious Damage to Property, Criminal Appeal, Evidence Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Omondi Juma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for burglary and stealing under Section 304(2) and 279(b) of the Penal Code was safe.
- 2 Whether the conviction for malicious damage to property under Section 339(1) of the Penal Code was supported by the evidence.
Ratio Decidendi
The court found that the conviction on Count 1 (burglary and stealing) was unsafe because the charge was not properly founded on the correct section of the Penal Code, and the respondent rightly conceded this point. Regarding Count 2 (malicious damage to property), the court determined that the prosecution's case was unsustainable due to the lack of direct evidence identifying the appellant as the perpetrator. The key witnesses either did not know the accused or failed to mention them in their statements, and there was no credible evidence linking the appellant to the destruction of the property. The investigating officer's reliance on information from a witness who did not know the...
Court Disposition
appeal allowed; convictions quashed; appellant to be released unless otherwise lawfully held
Orders
- The appeal is allowed in relation to both counts.
- The convictions on Count 1 and Count 2 are quashed.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
HCCRA NO. 8 OF 2019
JACOB OMONDI JUMA......APPELLANT
VERSUS
REPUBLIC..........................RESPONDENT
[Being an appeal against the Judgment and decision of the Principal Magistrate’s Court at Maseno (Hon. C. N. Oruo SRM) dated the 13th February 2019 in Maseno CMCCR No. 52 of 2016]
JUDGMENT
The Appellant, JACOB OMONDI JUMA, was convicted for 2 offences, namely;
i. Count 1– Burglary Contrary to Section304 (2) of the Penal Code and Stealing Contrary to Section 279 (b) of the Penal Code; and
ii. Count 2– Malicious Damage to PropertyContrary to Section 339 (1) of the PenalCode.
1. In respect to Count 1, the Appellant was sentenced to 2 Years imprisonment. Whilst in respect to Count 2, he was sentenced to 1 Year imprisonment.
2. During the hearing of the appeal, the learned state Counsel, Ms Odumba conceded that the conviction on Count 1 was not safe.
3. As the Respondent pointed out, Section 304 (2)of the Penal Code prescribes the sentence for the offence of burglary.
4. When an accused person faces a charge of burglary, the charge should be founded upon Section 304 (1)of the Penal Code.
5. Therefore, the Respondent was right to have conceded the appeal in relation to Count 1.
6. I therefore allow the appeal in relation to Count 1, and quash the conviction in that respect. I also set aside the sentence.
7. Meanwhile, in relation to the conviction on Count 2, the Complainant testified as PW1.
8. He was the owner of the iron-sheet house, which he had built on his father’s parcel of land.
9. He testified that on the material day, he got to the scene and he found that the house had already been demolished.
10. He explained that when he got to the scene, the Appellant was with the co-accused, as they were removing the iron sheets and timber that had been destroyed.
11. During cross-examination, PW1clearly stated that he never saw those who destroyed the house.
12. Another notable feature of the evidence of PW1was that in his Statement, the 2 accused persons were neither named nor identified.
13. Considering that PW1said that the 2 accused persons lived within the same village as he, it would have been expected that if he had identified them committing the offence, he would have said so in his Statement which he recorded at the police station.
14. PW2was the care-taker employed by the Complainant, to guard the structure which PW1built on the father’s land.
15. It is PW2who reported to PW1about the destruction of his house.
16. PW2testified that he did not know the accused persons.
17. PW3testified that he had identified the Appellant’s co-accused, as the house was being destroyed.
18. Secondly, he said that on the next morning, he saw the Appellant and the co-accused removing the iron sheets which had been destroyed on the night before.
19. Curiously, during cross-examination, PW3said that in the Statement which he recorded, he never mentioned the Appellant’s co-accused.
20. PW3also said that he did not see the 2 accused persons taking anything from the scene.
21. PW4was the Investigating Officer. He testified that it was PW2who told the police that he had witnessed the accused persons destroying the house.
22. When it is borne in mind that PW2testified that he did not know any of the 2 accused persons, I find that if the investigator relied on information from PW2, in order to arrest the accused persons, the case put forward by the prosecution is not sustainable.
23. Therefore, there is merit in the appeal in relation to Count 2.
24. Accordingly, I do hereby quash the conviction on Count 2, and set aside the sentence in relation thereto.
25. In the result, the appeal is successful. I order that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
DATED, SIGNED and DELIVERED at KISUMU This3rdday of December2020
FRED A. OCHIENG
JUDGE