https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9994

Otieno v Republic (Criminal Appeal E037 of 2025) [2026] KEHC 9994 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 9994 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E037 of 2025 WN Molonko, J July 9, 2026 Between John David Otieno Appellant and Republic Respondent (Being an appeal from the conviction and sentence by Hon. S. Mutava RM, in Rongo Principal Magistrate`s Court Criminal Case No. E029 of 2024 delivered on 11.04.2024) Judgment 1.The Appellant John David Otieno was charged with the offences of burglary and stealing contrary to Section 304(2) of the Penal Code in Count 1 and Section 268 in Count 2. 2.The particulars of the offence were that on 15th August, 2023 at unknown time at Ngodhe primary school East Kamagambo Sub location Rongo sub county within Migori County in the Republic of Kenya, jointly with others not before court broke into and entered Ngodhe Primary school head teacher's office and stole 1 digital literacy tablet the property of Ngodhe primary school tablet at Kshs.15.000/=. 3.The Appellant was also charged with alternative count of handling stolen property contrary to section 322(1) of the Penal Code. 4.The Appellant was tried of the offence and convicted. Uponconsidering the Probation Report, the trial court sentenced him to 7 years’ imprisonment on each count to run concurrently. 5.The Appellant was aggrieved by the conviction and sentence and he preferred this appeal. 6.He listed the following grounds of appeal:-a.That the trial magistrate erred in both law and facts by not complying with the provision of article 50(2) (h) of the Kenyan constitution 2010.b.The trial court erred in both law and facts by failing to consider that the ingredients of the offence herein were not proved to the required standard in law and facts.c.The trial court erred in both law and facts by meting a harsh and excessive sentence in the circumstances. 7.The appeal was canvassed by way of written submissions in which the appellant urged that the case against him was precipitated by an existing grudge between him and his girlfriend whom he fell out with because of unfulfilled promises. 8.The Appellant prayed that the conviction be quashed and sentence set aside and he be set at liberty and/ or in the alternative a re-trial be ordered and/or the sentence should be reviewed and considered for non-custodial sentence either probation or Community Service or an option of reasonable fine terms. 9.The prosecution in opposing the appeal argued that the case against the Appellant was proved beyond any reasonable doubt. That the appellant was responsible for breaking into the building of and thereafter stealing from the school. The Respondent argued that the alleged tablet belonging to the school was found in the Appellant’s possession and he failed to give an account how he came across the same. The Respondent further argued that the sentence meted out by the trial court was commensurate to the offence and therefore, the appeal is bereft of any merit and thus ought to be dismissed. 10.This being a first appeal, the duty of the court set out by the case of Okeno vs Republic [1972] EA 32 where the court held that: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. Also see Shantilal M Ruwala vs R (1957) EA 570. 11.Briefly, PW1, Richard Odhiambo, testified that he was the head teacher of Ngodhe Primary School. On 15 August 2023, tablets belonging to the school were stolen and he reported the incident to the police. On 8th February 2024, he was informed by the police that a person had been arrested in connection with the theft of the tablets and was requested to confirm whether a recovered tablet belonged to the school. Upon examination, he confirmed that the tablet bearing Serial Number Gokmoestled/653463 appeared on the school's packing list as item number 27. He produced the Packing List as PMFI 2 and the Delivery Note as PMFI 3. He stated that he did not know the person who broke into the school. 12.PW2, Leunner Anita, testified that she was a Public Health Officer at Ngodhe Primary School. She stated that the Appellant was her neighbor and a boda boda rider who had previously been a student at Ngodhe Mixed Secondary School. She said that the Appellant used to transport her whenever she had errands. According to her evidence, she gave the Appellant the keys to her house when she went for an operation. Upon her return, she found him living in her house together with a girl. She found a tablet in the house and upon asking the Appellant about its ownership, he said it belonged to a teacher at Kokuro School. She stated that the girl who was with him denied any knowledge of the tablet. PW2 further testified that the Appellant informed her that he had returned the tablet to the teacher. However, she subsequently recovered the tablet among his belongings and reported the matter to the police. 13.PW3, 234712 PC Justus Ondieki, the investigating officer, testified that on 12.03.2023, he was at the office when PW2 arrived at the station and reported that the Appellant who was living in her house was in possession of government property. He visited the scene and recovered a digital tablet bearing Serial Number GOKSTLDD1653463 together with personal documents belonging to the Appellant, namely his KCPE certificate, KRA PIN certificate and Identity Card. 14.It is in his evidence that on 7 January 2024, the police received information regarding the whereabouts of the Appellant, traced and arrested him. Investigations established that the recovered tablet belonged to Ngodhe Primary School as confirmed by the Packing List and Delivery Note marked as PMFI 2 and PMFI 3. He produced the tablet as an exhibit, the Packing List as Exhibit 2 and the Delivery Note as Exhibit 3. 15.When put on his defence, the Appellant in his sworn testimony stated that he eked a living as a boda boda rider. He recalled that on 15th August 2023, while travelling to submit his documents for a job application, he met Anita at Rongo Dispensary. He testified that Anita requested him to transport her as they were travelling in the same direction. According to him, after alighting, Anita purchased household supplies and food before they proceeded to her house. They took tea together and Anita informed him that she would connect him with her brother, who was a head teacher for employment opportunities. He stated that Anita told him the condition for the assistance was that he become her husband. It is in his testimony that Anita showed him a tablet which she claimed had been given to her by her brother, the head teacher. 16.He stated that they remained in the house awaiting feedback from Anita regarding the employment opportunity. He alleged that he began living with Anita and that they cohabited for approximately one month. When the anticipated employment failed to materialize, he decided to leave. He stated that Anita threatened to have him arrested and he subsequently left. He further testified that on 7 January 2024 at about 3.00 p.m., while riding a motorcycle, he encountered two police officers who arrested him and later charged him with the offence before the court. 17.On cross examination, he stated that he had known Anita since 2020. He confirmed that Anita left the house keys with him when she went to hospital and that he had possession of the keys in September 2023. He denied living in Anita's house with a girlfriend. He described the tablet as green in colour and stated that Anita's brother was the head teacher of Ngodhe Primary School, although she never disclosed his name to him. He further confirmed that he left his educational certificates in Anita's house. 18.I have considered the record of appeal herein, grounds of appeal and submissions by both parties thereof. The issues for determination are as follows: whether the trial court complied with article 50(2)(g)(h) of the constitution; whether the prosecution proved its case beyond reasonable doubt and whether the sentence was harsh and excessive in the circumstances. 19.The Appellant argued that his rights to a fair trial was violated as he was not represented by an Advocate during trial. A perusal of the proceedings indicate that the Appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance. 20.He chose to represent himself. He did not demonstrate that he requested the trial court to be provided with legal representation and that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if the trial proceeded without legal representation. This Court also notes from the record that the Appellant understood the trial process and he was able to effectively cross- examine the witnesses. 21.For the reasons stated above, I come to the conclusion that the Appellant’s constitutional and fundamental right to legal representation under Article 50(2)(g)&(h) of the Constitution was not violated. 22.As stated, the appellant was charged with the offence of burglary contrary to Section 304(2) of the Penal Code. Section 304 defines the Offence of Burglary as housebreaking which occurs during the night.Section 304 reads as follows-(1)Any person who –a.breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; orb.having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel breaks out thereof is guilty of the felony termed house-breaking and is liable to imprisonment for seven years.(2)If the offence is committed at night, it is termed burglary and the offender is liable to imprisonment for ten years. 23.The ingredients of the offence of burglary therefore are similar to that of housebreaking save that burglary occurs at night. 24.Breaking into building and committing felony is provided for by section 302 of the Penal code as follows-Any person who—a.breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling house and occupied with it but it is not part of it, or any building used as a place of worship, and commits a felony therein; orb.breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years. 25.It is clear from the above provision that the offence prescribed has two elements, that is; breaking and entering into dwelling house or building and committing a felony to wit; stealing. 26.Section 268 of the Penal Code defines “stealing”” in the following terms:“(1)A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.(2)A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say—a.an intent permanently to deprive the general or special owner of the thing of it;b.an intent to use the thing as a pledge or security;c.an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;d.an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;e.in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.” 27.Breaking is defined in section 303 of the Penal Code as follows:“ 303.(1)A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever any door, window, shutter, cellar flap or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.(2)A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building.(3)A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any aperture of the building left open for any purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building.” 28.In this case, it follows therefore that for the prosecution to prove that the Appellant broke into the headteacher’s office, it ought to have adduced evidence that the Appellant got entry into the building by breaking any part of the building or opened any part of the building so as to gain entry. 29.The facts given by PW1 are that forty-seven tablets were stolen from the school on 15th August 2023. One of the stolen tablets was subsequently recovered from the Appellant’s residence. Based on the recovery of the tablet and the evidence adduced during trial, the prosecution argued that the appellant was responsible for the theft. It is in the evidence on record that the school windows were broken into. As such, there was evidence of breaking in and thereafter stealing of the tablets belonging to the school. The questions to be answered thereafter is by whom? Was the Appellant responsible? 30.The appellant upon being found to be in possession of the tablet, the onus rested on him to account on how he came across the said tablet. He told PW2 that the tablet belonged to a teacher at Kokuro School. He later alleged that the tablet belonged to PW2. In the same vein, he alleged that there was a grudge between him and PW2 which he explained it stemmed from unfulfilled promises. As correctly stated by the trial court, the Appellant failed to provide a credible explanation for how he acquired the tablet. 31.Turning to the basis of the conviction, the trial magistrate relied on the doctrine of recent possession to convict the Appellant as there was no direct evidence implicating him in the burglary and stealing. The ingredients to be established in proving a case based on the doctrine of recent possession were distilled by the Court of Appeal in Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga v Republic }Criminal Appeal No. 272 of 2005 as follows:-“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly, that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. 32.The principle is that if recently stolen goods are found in possession of an accused who cannot explain his possession, there is a presumption that the person is the thief or handler of the stolen goods. See Chaama Hassan Hasa vs Republic (1976) KLR 6, 10. 33.It therefore follows that for the doctrine to stand, the evidence of recovery of the material property must be sufficient and credible. There must also be sufficient and credible evidence for positive identification of the property as belonging to the victim. 34.In the instant case, the arrest was made on 7/1/2024 after a period of 5 months from the date of the offence. The tablet was found 5 months after the theft. This period is too long to give rise to the doctrine of recent possession. No one saw the Appellant break into the headteacher’s office, nor was he identified as the perpetrator of the theft. The only evidence to connect him with the offence of burglary and theft was that of the tablet being found in his possession. The trial court erred in convicting him on these counts, and accordingly, the convictions and sentences for Counts I and II are hereby set aside. 35.In my view, what was proved by the prosecution in this case is the third count- offence of handling stolen property contrary to section 322 (1) of the Penal Code. The evidence on record establishes that he was involved in the commission of the main offences on the application of the doctrine of recent possession. However, the evidence proves the offence of handling stolen property. I therefore quash the conviction for the offence of burglary and stealing and substitute therefore a conviction and sentence for the offence of handling of stolen property contrary to Section 322 of the Penal Code. 36.The appellant is hereby sentenced to serve three years imprisonment from the date on which he was sentenced. 37.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 9TH DAY OF JULY, 2026………………………..W.N. MOLONKOJUDGEJudgment delivered virtually in the presence of:No appearance for the RespondentJohn David Otieno- AppellantSusan Nzioka – Court Assistant