[2004] KEHC 1029 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

HIGH COURT CRIMINAL APPEAL CASE 115 OF 2003

JOHN MWANZIA NZIMBA .............................APPELLANT

VERSUS

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

(From the Original Conviction(s) and Sentence(s) in Criminal Case No. 116 of 2003 of

Senior Resident Magistrate’s Court at Kangundo: N.N. Njagi on 16/4/03)

J U D G E M E N T

This is an appeal from the Judgement of Senior Resident Magistrate Kangundo Court in Criminal Case No. 116/03. In that case the appellant was charged with another with offence of Burglary and Stealing Contrary to Section 304 (2) and 279 (b) of the Penal Code. In the alternative, the appellant was charged with handling stolen property Contrary to Section 322 (2) of the Penal Code.

After the trial both accused were acquitted of the charge of Burglary and Stealing but the appellant, who was 1st accused was convicted on the alternative charge and sentenced to serve ten (10) years imprisonment with hard labour. He is dissatisfied with the said conviction and sentence against which he appeals.

The petition of appeal contains six grounds summarized as follows:

1. That the evidence of the witnesses were not corroborated and hence not sufficient prove to the charge against the appellant.

2. The sentence was harsh and excessive.

3. That he is sickly and appeals to the mercy of the court.

Roughly the facts before the lower court were as follows: PW 1 locked up her son’s house on the evening of 9/2/03 at 8. 00 p.m. She went to sleep and next morning, she found that the padlock of her son’s house was tampered with and she found several items missing. She informed her family members who went to look for the stolen items. PW 3 who had visited complainant’s home on 9/2/0/03 for a party was informed of the theft and she met accused with a paper bag. He looked disturbed. She asked some boys to stop accused 1 and she found two plates and cups which they had used the previous day and which were lost. She took accused 1 to Tala Police Post. Accused 1 later led them wheresufuria s, cups and glasses were recovered. PW 3 similarly claimed to have met accused 1 with a paper bag, followed him and checked his bag which had cups and plates. The appellant later led them where the rest of the stolen items were recovered. PW 4 had lent PW 1 asufuria which PW 4 learnt had been stolen. Later she was shown goods recovered from the appellant which included her sufuria. PW 5 recalled that the appellant was taken to him at the police post by PW 2. After interrogation he agreed to go and show where the other goods were hidden and the goods produced as exhibits were recovered. In appellant’s house was found a sufuria with cooked chicken. PW 1 said the chicken was also stolen from her home. Appellant led to the arrest of accused 2 who had allegedly given him the things but he was later acquitted of the charges.

The appellant admitted having been found in possession of the stolen goods but named accused 2 as the person who sold the goods to him.

The learned State Counsel Mr O’mirera vehemently opposed the appeal on grounds that there is overwhelming evidence on record in support of the charge.

I have re-evaluated the evidence adduced in the lower court. Though the appellant in his grounds of appeal claimed that the witnesses PW 1, 2 and 3 fabricated evidence against him, the appellant does admit that he was found in actual possession of the complainant’s goods. The recovery was made 10th February 2003 when the theft had been committed the previous night. Having so admitted the appellant cannot turn round and say that he was framed.

The magistrate in his judgement found that there was no evidence in support of the charge of Burglary and Stealing. PW 1 did not know who had broken into her house. However, the appellant having been found with the goods only hours after the theft, the court could have invoked the doctrine of recent possession which raises a presumption that indeed appellant was the thief.

The evidence of PW 2, 3 and 5 was that the appellant led them to the place where the rest of the stolen goods were recovered. Infact, a sufuria was found under his bed with cooked chicken which was amongst the stolen items. Appellant did not deny that fact. If indeed these things were hidden, even if appellant had not stolen but had bought the things from accused 2 as alleged, appellant must have known them to be stolen and that is why he concealed them. That is evidence of his guilt. His conduct was evidence of his involvement in the offence.

In my considered view, there was indeed overwhelming evidence on record that the appellant was found with the stolen goods which he knew to be stolen. He admits having been found with the stolen goods. The prosecution evidence was so watertight that there was no room for this court to interfere with the conviction and it is hereby confirmed.

The appellant was sentenced to ten (10) years imprisonment. He was said to be a first offender. Under Section 322 (2) of the Penal Code, the maximum sentence is fourteen (14) years. The appellant having been a first offender and considering the gravity of the offence, I find the sentence to be harsh and excessive in the circumstances. Accordingly I will reduce the sentence and order for Community Service report. The appeal, therefore, succeeds on sentence alone. Appeal on conviction is dismissed. Mention on 29/11/04.

Dated at Machakos this 18th day of November 2004

R.V. WENDOH

JUDGE