[2013] KEHC 1386 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 201 OF 2011

JAMES MUTUKU.................................................................………..APPELLANT

VERSUS

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

(From the Original Conviction and Sentence in the Criminal Case No. 492 of 2010 of the Principal Magistrate's Court at Voi – Hon. Nyakundi -RM)

JUDGMENT

JAMES MUTUKU hereinafter referred to as the Appellant herein was Convicted and Sentenced to six years Imprisonment for the offence of Burglary and Stealing contrary to section 304 (2) and 279 (b) off the Penal Code.

The particulars were that on the night of the 26th day of June, 2010 at Maweni Estate Voi- Taveta County he broke and entered the dwelling house FESTUS MUTUKU with intent to steal therein and did steal therein one mattress the property of FESTUS MUTUKU being of the value of Ksh. 1,800/=.

It is not in dispute that the complainants house was broken into during the night and a mattress was stolen the property of the Complainant. Evidence of the break in was produced in court in the form of a broken padlock.

Prosecution star witness is one KOMBO ABDALLA (PW 2). It is he who testified to have seen the Appellant at midnight in the neighbourhood carrying a mattress and he thought he was shifting to another house.

At page 5 line 21 he testified thus,

“I told my friend that it seems the Accused had moved at night because previously he had been caught with a sack of charcoal. I suspected him and decided to follow him. On my way I met him coming back with nothing. There was bright moonlight and I could see him clearly. The following day, Festus came and asked me about the mattress. I told him I had seen Rasta (the Accused) with the mattress. I told them to go and talk to him”

In his Judgment the trial magistrate did observe at page 18 line 3 that,

“PW 2 clearly identified the Accused person on the night of 26th June, 2010 with a mattress. PW 2 appeared to be a truthful witness”.........I am satisfied that on the night of 26th June, 2010 the Accused was seen in possession of a mattress and positively identified by PW 2”.

It is noted that the appellant was known to PW 2 before so it was not a question of identification but one of recognition. After he was confronted by the Complainant about the mattress the appellant had told him that they would discuss the matter later. The trial magistrate correctly pointed out this aspect of evidence as indicative of the appellants admission that he was aware of the mattress issue and hence the burglary. I am in agreement with his observation and I am satisfied that though the mattress was not recovered, the Accused was seen near the scene of the burglary carrying a mattress and this was not by mere coincidence. The time of the burglary and the time he was seen were just a few minutes apart.

In his defence the appellant did concede that on the 27th June, 2010 two men went to his place of work and they asked him about a missing mattress and he told them that they could return later. If he did not know something about the stolen mattress why would he tell the Complainants to return and talk to him later? I find the Conviction was safe. On the issue of Sentence. The appellant was treated as a first offender. The maximum sentence for burglary is ten (10) years and stealing from a dwelling house is fourteen (14) years. The Appellant had stolen a mattress only.

The sentence of six (6) years is harsh in the circumstances of this case. Same is altered or varied to three years imprisonment on each limb. Sentence to run concurrently. In the event that he has already served the three(3) years to be released forthwith unless otherwise lawfully held.

Judgment delivered dated and signed this 5th day of November, 2013.

…....................

M. MUYA

JUDGE

5TH NOVEMBER, 2013

In the presence of:-

Learned State Counsel Miss Ogweno

The appellant present

Court clerk Musundi