[2002] KEHC 356 (KLR)
The court found that the conviction was unsafe because there was no evidence directly linking the appellant to the theft of the goods in transit. The evidence showed that the container was handled by many people, and there was no proof that the appellant was in possession of or had moved the stolen goods. The trial...
Source-derived case information.
- Citation
- [2002] KEHC 356 (KLR)
- Parties
- Appellant: John Kimathi Mbuthia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 898 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stealing in Transit, Elements of the Offence, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Kimathi Mbuthia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved beyond reasonable doubt that the appellant stole goods in transit.
- 2 Whether the evidence adduced linked the appellant to the stolen goods.
Ratio Decidendi
The court found that the conviction was unsafe because there was no evidence directly linking the appellant to the theft of the goods in transit. The evidence showed that the container was handled by many people, and there was no proof that the appellant was in possession of or had moved the stolen goods. The trial magistrate's conclusion that the appellant was the chief player was not supported by the evidence. The appellate court agreed with the concession by the respondent that the conviction could not be sustained and allowed the appeal, quashing the conviction and setting aside the sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO 898 OF 2001
(From original conviction and sentence in Criminal case no.311 of 2000 of the Principal Magistrate’s Court at Nairobi) R. A MUTOKA (MRS) Esq
JOHN KIMATHI MBUTHIA…………………………………APPELLANT
VERSUS
REPUBLIC…………………………………………………..RESPONDENT
J U D G M E N T
The appellant John Kimathi Mbuthia was charged jointly with others with the offence of stealing goods in transit c/s 279 ( c ) of the Penal Code. After a full trial, the appellant was convicted and placed on one year probation period. Being aggrieved by the said conviction he lodged an appeal.
As the first appellate court, it is my duty to re-evaluate the entire evidence and come to an independent conclusion. This I have done. At the hearing of the appeal, the learned counsel for the republic conceded the appeal and with respect I agree. Following that concession, it is not necessary to set out in detail the evidence that exonerated the appellant save to point out the salient points thereof.
For the offence of stealing to be proved, there must be evidence adduced that the subject matter alleged to have been stolen was moved and that it was the accused who did so. In this regard, the evidence of Pw5 and pw7 was instructive. In the first place the appellant was not found with anything incriminating, or linked to the stolen subject matter.
The goods stolen we said to be in a container at Jomo Kenyatta International Airport. The container was handled by many people but when it came to the evidence that tended to link the appellant with the said container, the evidence of Pw7 was that the said container was empty and nowhere was it suggested that, it was the appellant who emptied it of its contents.
The conclusion by the learned trial magistrate that the container was not empty is not supported by any evidence and the observation by counsel that the court turned into a prosecution witness may be justified. The appellant was also described by the learned trial magistrate as the chief player yet, with respect, no justification can be found for that observation.
The conviction in my judgment was most unsafe in the circumstances of this case.
Accordingly, this appeal is allowed, conviction quashed and sentence set aside.
Orders accordingly.
Dated and delivered at Nairobi this 29th day of May 2002
A. MBOGHOLI MSAGHA
JUDGE