[2015] KEHC 2098 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 87 OF 2014

BETWEEN

JOHN KEYA MALIKA.......................................................APPELLANT

AND

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

(Being an appeal against conviction and sentence of 5 years imprisonment delivered by E.S. Olwande, SPM in Butere PM’s Cr. Case No. 480 of 2013 on 23/06/2014)

JUDGMENT

Introduction

1. The appellant was charged in the lower court with the offence of breaking into a building and committing a felony contrary to section 306(a) of the Penal Code. The particulars of the offence were that on the night of 12th and 13th November, 2013 at Lower Market Shirembe Sub-Location in Butere District within Kakamega country jointly with others not before court broke and entered in a building namely a tailoring shop of EVERLYNE MUSHI OLUKAKA and committed therein a felony namely stealing and did steal from therein, 2 butterfly sewing machines, one swan sewing machine, several clothe materials, cosmetics, bras inner pants, threads, buttons needles all valued at kshs.92,000/= the property of EVELYNE MUSHI OLUKAKA.

2. Alternatively, he was charged with the offence of handling stolen goods contrary to section 322 (1) of the Penal Code. Particulars of the charge were that on the 12th day of December, 2013 at Maisha Estate, Shirotsa Sub-Location in Butere District within Kakamega otherwise than in the course of stealing, dishonestly retained green material clothe sky blue sheet, blue material clothe, 2 bras, ribbons, one scissor , one tape measure, 8 threads, 29 buttons, 12 packets of sewing needles, piece of kitenge clothe, piece of butterfly head R4-6 the property of Everlyne Mushi Olukaka valued at kshs.4,146 knowing or having reason to believe them to be stolen goods.

The Appeal

3. The appellant denied the charge before the court but after full trial, he was found guilty of the alternative charge and convicted and sentenced to five (5) years imprisonment. Being dissatisfied with the said conviction and sentence he has appealed on the following homemade grounds;-

“1. THAT I did not plead guilty to the charge

2. THAT the trial court erred both in law and fact in convicting me yet the evidence on record was forced on me by members of the public.

3. THAT the sentence meted was harsh and excessive in the circumstances

4. THAT the evidence on record was not corroborated to sustain a conviction

5. THAT the alleged offence was said to have been committed on the same night but the prosecution separated the charge sheets to make sure I get several sentences from different criminal case numbers which contravened my fundamental right of the minimum penalty in the circumstances.

6. THAT I pray that Cr. Case No. 485/2013, 482/2013 and 480/2013 be consolidated as all the alleged offences are said to have happened at one place in the same night

7. THAT the trial court rejected my defence which was sufficient enough to exonerate me from any wrong doing.

8. THAT there was malice on the side of the members of the public who arrested me.”

4. He prays that the appeal allowed the conviction quashed and the sentence set aside and he be set at liberty.

5. At the hearing of the appeal the appellant tendered his written submissions and told the court that he fully relied on the same.

6. Mr. Omwenga for the State opposed the appeal. He submitted that the appellant was properly convicted and sentenced even though in his view the sentence of five (5) years imprisonment was quite lenient since it fell below the maximum sentence prescribed by law. He also submitted that the sentence was not excessive considering the fact that appellant was serving sentence in other criminal cases. Counsel also submitted that the evidence that was adduced before the trial court was consistent. That the conviction was proper.

7. In reply the appellant disagreed that the sentence was proper. He also submitted that the evidence was not sufficient to warrant a conviction as the members of the public who allegedly arrested him were not called as witnesses.

8. The appellant stated further that he had three other cases and was convicted in all of them. He requested this court to carefully consider both sides of this case because the alleged offences were planted on him simply because he had come out of prison. In conclusion he submitted that PW1 did not produce evidence to show ownership of the items that were produced in court which he alleged were planted upon him.”

The Prosecution Case

9. Briefly the facts of the prosecution case are as follows;

PW1 EVERLYNE MUSHI OLUKAKA a tailor from Bukote village in Shirotsa Sub-Location who sells dress materials as well as tailoring materials and beauty products in her shop at lower market in Butere testified that on the 12. 11. 2012 at 6. 30 p.m she locked up her shop and went home. The next morning at 7. 00am her colleague by the name Patrick called her and told her to go to her shop as the shops door had been broken and it looked like some things had been stolen. She rushed to the shop and found many people outside.

10. She stated that on arrival, she found the door to the shop open and everything inside had been stolen. She mentioned what had been stolen from her shop. On 11. 12. 2013 at about 12. 30 pm she was called by a police officer to go to Butere Police Station and identify some items that had been recovered. She immediately went to the station where she was able to identify some of her items which had been stolen from her shop. She stated that she did not know the appellant before but came to know him during the case.

11. Cross examined by accused she confirmed that her shop was broken into and her property stolen. She told the accused that he was arrested on the day the police called her and that she did not see him as he was being arrested.

12. She also confirmed that she saw her property at the police station although they were taken there after being recovered from the appellant’s house. She told the court that it would be a lie to say that the investigating officer is the one who had stolen the items and planted them on the appellant.

13. PW2 No. 53012 PC JACKSON WANYAMA based at Butere police station told the trial court that he investigated this case together with sgt Chahilu.

14. He testified that on 11. 12. 2013 at about 2. 30pm he was in the office when the OCS CI Mwaita received a call from members of the public in Sabatia to the effect that the Appellant had been spotted at Sabatia stage and was preparing to board a vehicle for Mumias. He stated that since the appellant was a suspect in connection with various offences of breaking and stealing, they proceeded to Sabatia Stage in the company of other officers and found the appellant and arrested him took him to the station where he was eventually charged with the offence herein.

15. PW2 further stated that there were several reports that had been made in which the appellant was an alleged sex pest. He explained that it had been reported that 3 sewing machines, clothes material and other tailoring paragphermalia had been stolen. The next day the appellant took them to his house where they conducted a search in his (appellants) presence together with Sgt Chahilu and recovered materials and other tailoring paraphernalia MFI – P4 (a) to (k). They also found other items which were not connected with this case. The items before Court were the ones which the complainant PW1 identified as hers. An inventory of the recovered items was made by Sgt Chahilu and same was signed by the appellant who was given the original (MFI P5).

16. PW2 explained that the complainant (PW1) gave them documents to show she bought some of the items herein MFIP 1 (a) to (e), MFI P2 are receipts for sewing machines and MFI P3 the agreement for purchase of the sewing machine and MFI 1 P6 was the licence for her tailoring shop.

17. PW2 also testified that upon completion of the investigations Sgt Chahilu who was the Investigating officer charged the appellant with the offence. PW2 stated that the appellant was connected with the offence herein as he was found with the stolen items in his house. PW2 produced the exhibits including the inventory, all of which were marked as Ex P1 (a) – (e), 2,3,,4 (a) – k, 5 and 6.

18. On cross examination by the appellant he explained that they got the appellant as a suspect through an informer who told them that some items were being hidden in his house.

19. The Prosecution then closed its case and the trial Court after considering the evidence presented by the prosecution found it sufficient to warrant placing the accused on his defence, and proceeded to do so.

Defence Case

20. The appellant gave sworn evidence. He told the trial Court that on the 12. 12. 13 at about 4. 00pm as he was on his way to Sabatia Market, he was stopped by motor cycle riders who took him to Sabatia behind Travellers Bar. A vehicle from Butere Police Station came to where they were and the OCS and 2 other officers took him to Butere Police Station. After one (1) hour he was taken to the O.C. Crime and was shown some items which he maintained he knew nothing about. The next day he was arraigned in Court.

21. On cross examination by the Prosecution the appellant stated that he saw the complainant identify the exhibits but denied that P.C. Wanyama ever escorted him to his house. He denied signing anything/document.

Judgment of the trial court

22. After carefully considering all the evidence that was before it, the trial Court was convinced beyond reasonable doubt that the complainant’s property was found in the house of the appellant. She however found that since the items were of an ordinary nature, it could not be said that the complainant bought them. Consequently she found that the Prosecution had proved the alternate count beyond reasonable doubt and convicted the appellant of the same under Section 322 (2) of the Penal Code and sentenced him to five (5) years imprisonment.

Duty of this court and analysis

23. This is a first appeal and as such this Court is duty bound to re-evaluate all the evidence on record and come to its own findings and conclusions. See OKENO –VS- REPUBLIC [1972] E.A 32.

24. It is true that the appellant did not plead guilty to the offence but that does not mean he was innocent. The prosecution called its witnesses and the appellant was given an opportunity to defend himself after which the Court made a finding that the prosecution had proved its case beyond reasonable doubt on the alternative charge of handling stolen goods.

25. The evidence on record shows that the items stolen from the complainant were found in the house of the appellant. This was witnessed by PW2 and Sgt Chahilu who went to the appellant’s house together with him. They had information from an informer and that is why they suspected him. An inventory was prepared and the appellant signed the same. Nothing to the contrary was said about the items that were found in the appellant’s house. He did not claim that those were his items or his wife’s nor did he produce receipts to show ownership. There was no evidence on record to show that the same were planted on him (the appellant) by the public.

26. Regarding sentence, prosecution counsel submitted that the sentence meted out to the appellant was lenient in the circumstances though the appellant submitted that the same was harsh and excessive. The Penal Code Cap 63 Section 322(2) provides:

“A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years”

27. From a reading of the said Section when one is found guilty of handling stolen goods he is liable to:

i. imprisonment for a term not exceeding fourteen years

ii. hard labour

The convict can be imprisoned to any prison term ranging from one (1) day to fourteen years. The appellant was imprisoned for five (5) years without hard labour which has since been outlawed. I find that the said sentence was lawful though on the lower side since the appellant is admittedly a repeat offender.

28. On corroboration of the Prosecution evidence, I find that the argument by the appellant does not hold any water. PW1 reported that her shop had been broken into and goods stolen and after about one (1) month some of the said items were recovered by PW2 and other officers at the appellants house. She (PW1) was able to identify some of her goods. PW1’s evidence was properly corroborated by PW2 who recovered the items from the appellant’s house and PW1 was able to identify some of her stolen goods and also produced receipts for the same.

29. I also find that ground 5 of the appeal cannot stand. The record does not show that the offences were said to have been committed on the same night and that the Prosecution separated the charge sheets to make sure the appellant got several sentences from the different case numbers. Even if the charges were put in the same charge sheet the appellant if convicted was going to be sentenced. The number of charge sheets does not determine how one would be sentenced. The appellant should have applied for consolidation of the criminal cases in the lower court and this should not be a complaint on appeal. The appellant gave sworn testimony and was cross examined on the same. The trial Court recorded his testimony and considered the same in its judgment. She found it hard to believe his evidence and went ahead to state in her judgment that the complainant who was a total stranger to the appellant could not possibly have had any grudges against the appellant and she therefore had no reason to lie against him.

30. By looking at the record the trial court did consider the defence evidence. The burden of proof on any allegation is always on the person who alleges. In his grounds of appeal the appellant has alleged malice. Nowhere in his evidence in defence has he shown malice on the part of the members of the public. It is therefore not possible for this court to infer malice and the same has not been brought out. Ground eight of the appeal herein also fails.

31. The appellant has also raised the issue that the evidence by the prosecution was not sufficient as the members of the public who allegedly arrested him were not called as witnesses. Though the issue about failure to call essential witnesses is pertinent, such failure can only assist an accused when the evidence on record is weak. See BUKENYA –VS- UGANDA [1972] E.A549. The court held:

“Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have ended to be adverse to the Prosecution.” I make no inference that the uncalled evidence would have been adverse to the prosecution. In any event, I find, as the trial court did that the evidence of the two witnesses was sufficient for a conviction on the alternative charge.

32. Conclusion

For the reasons stated above, I find that the appeal herein lacks merit and dismiss the same in its entirety.

33. Orders accordingly.

Judgment delivered, dated and signed in open court at Kakamega this 1st day of October 2015

RUTH N. SITATI

JUDGE

In the presence of:-

Mr. Omwenga (present) for the Respondent

Mr. Okoit - Court Assistant