[1992] KEHC 99 (KLR)
The court found that the appellant was found in recent possession of the stolen engine timing cover, failed to provide a credible explanation for his possession, and attempted to flee when confronted, which corroborated the prosecution's case. The trial magistrate was entitled to believe the prosecution witnesses...
Source-derived case information.
- Citation
- [1992] KEHC 99 (KLR)
- Parties
- Appellant: Charles Kimathi Kabora; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 51 of 1992
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence allowed in part.
- Legal Topics
- Theft From Locked Motor Vehicle, Evidence of Possession, Credibility of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kimathi Kabora
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced was sufficient to sustain a conviction for stealing from a locked motor vehicle.
- 2 Whether the sentence imposed was excessive in the circumstances.
Ratio Decidendi
The court found that the appellant was found in recent possession of the stolen engine timing cover, failed to provide a credible explanation for his possession, and attempted to flee when confronted, which corroborated the prosecution's case. The trial magistrate was entitled to believe the prosecution witnesses and disbelieve the appellant's unsworn statement. The conviction was therefore sound. However, considering that the appellant was a first offender and the stolen item was recovered, the sentence of three years' imprisonment was deemed excessive. The court reduced the sentence to eighteen months' imprisonment from the date of the original conviction and sentence.
Court Disposition
Appeal against conviction dismissed; appeal against sentence allowed in part.
Orders
- Conviction upheld.
- Sentence reduced to 18 months' imprisonment from date of original conviction and sentence.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
Kabora v Republic
High Court, at Mombasa September 1, 1992,
Omolo J
Omolo J delivered the following Judgment.
Like the magistrate, I am satisfied that there was abundant evidence to prove that the appellant, Charles Kimathi Kabora, broke into vehicle Reg. KAA 657M belonging to Mbaruku Hamisi and stole from that vehicle 1 engine timing cover whose value was put at some Shs.20,000/-. The vehicle of Mbaruku (PW.1) broke down in the course of business and he had it towed to a shed or garage belong Mohamed Kea (PW.2) PW.2 was working together with Athmani Ali (PW.3), and the two of them stated that after the vehicle was brought to their garage they locked it up and on the 1st December, 1991 at night, the timing cover was stolen from the vehicle. That item was apparently removed from the engine and to do so the person who stole it must have opened the vehicle.
The evidence of PW.2 and PW.3 was that on the 3rd December, 1991 they met this appellant and he was in possession of the item which had been stolen from the vehicle. When they asked him about the stolen item, the appellant reacted by dropping it down and running away. He was chased and caught and taken to the police station where Constable Nathan Ambogo (PW.4) received him together with the stolen item. When put to his defence the appellant merely alleged that he had quarreled with some person, that that person hit him with a metal object and the crowd which gathered then alleged he had stolen the metal object with which he had been hit. The learned Snr. Resident Magistrate who saw and heard witnesses give evidence before him believed the witnesses for the Republic and disbelieved the short unsworn statement of the appellant. The magistrate was entitled to do so, and in the evidence before me, I do not see that there was any other reasonable conclusion to be drawn. The conviction of the appellant was sound, and I dismiss the appeal against the conviction. The appellant was a first offender and the item stolen from the vehicle was recovered. Though the offence of stealing from a locked motor vehicle is common and serious, the sentence of 3 years imprisonment imposed on the appellant was too severe in the circumstances. I reduce the prison term to one of 18 months to run from the date when the appellant was convicted and sentenced by the magistrate. To that extent, the appeal against sentence succeeds.