[2013] KEHC 2637 (KLR)
The court found that there was no direct or circumstantial evidence linking the appellants to the theft of the water pipes. None of the stolen items were recovered from the appellants, and no witness testified to having seen them steal the pipes. The only evidence was that the pipes were found in the home of a third...
Source-derived case information.
- Citation
- [2013] KEHC 2637 (KLR)
- Parties
- Appellant: Justine Mwabili Mbachu; Appellant: Stanslas Edward Mjomba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 183 & 184 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- GO Shikwe
- Legal Topics
- Stealing Offence, Burden of Proof, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justine Mwabili Mbachu
Appellant
Stanslas Edward Mjomba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellants for stealing was supported by sufficient evidence.
- 2 Whether the sentence imposed was safe in law.
Ratio Decidendi
The court found that there was no direct or circumstantial evidence linking the appellants to the theft of the water pipes. None of the stolen items were recovered from the appellants, and no witness testified to having seen them steal the pipes. The only evidence was that the pipes were found in the home of a third party who was neither charged nor called as a witness. Additionally, other individuals mentioned in the prosecution's case were not arrested. The court concluded that the prosecution failed to prove the appellants' involvement beyond reasonable doubt, rendering the conviction unsafe. Consequently, the conviction was quashed and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction of the appellants is quashed.
- The sentence imposed on the appellants is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 183 & 184 OF 2012
JUSTINE MWABILI MBACHU
STANSLAS EDWARD MJOMBA ….......................………..APPELLANTS
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From the Original Conviction and Sentence in the Criminal Case No. 737 of 2010 of the Senior Resident Magistrate's Court at Wundanyi – Orenge - RM)
JUDGMENT
The two appellants and two others were charged with stealing contrary to section 275 of the Penal Code. They were all Convicted after a full hearing and each Sentenced to four years Imprisonment. The two appellants have now appealed against Conviction and Sentence.
The state concedes to the appeal.
The stolen items in this case were water pipes. None was found with the appellants. No witness saw them stealing them. The pipes were found in the home of one scarer. This scarer was not one of the Accused persons nor was he a witness. One Mathias who was adversely mentioned by the prosecution witness and another by the name of Njore were not arrested as it is said that they escaped.
I do concur with counsel Miss Ogweno for the state that the role the appellants played in the theft of the water pipes is not clear.
The Conviction was not safe. It is quashed accordingly and the Sentence set aside.
They are set at liberty unless otherwise lawfully held.
Judgment dated and delivered hiss 6th day of August, 2013.
….....................
M. MUYA
JUDGE
6TH AUGUST, 2013
In the presence of:-
Learned state Counsel Miss Ogweno
The Appellants present
Court clerk Mr. Musundi