[2019] KEHC 10154 (KLR)
The court found that the appellant, as the driver of the vehicle, had the greatest responsibility and duty of care over the goods in transit. The appellant's unsworn defence was deemed not credible and insufficient to create any reasonable doubt in the prosecution's case. The court reiterated its earlier findings in...
Source-derived case information.
- Citation
- [2019] KEHC 10154 (KLR)
- Parties
- Appellant: Kennedy Odhiambo Sewe alias Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 13 of 2019
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- AC Mrima
- Legal Topics
- Stealing Goods on Transit, Criminal Appeals, Duty of Care, Sentencing Principles
- 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
Kennedy Odhiambo Sewe alias Owino
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction of the appellant for stealing goods on transit was supported by the evidence on record.
- 2 Whether the appellant's unsworn defence created reasonable doubt in the prosecution's case.
- 3 Whether the sentence imposed on the appellant was appropriate given his role as the driver.
Ratio Decidendi
The court found that the appellant, as the driver of the vehicle, had the greatest responsibility and duty of care over the goods in transit. The appellant's unsworn defence was deemed not credible and insufficient to create any reasonable doubt in the prosecution's case. The court reiterated its earlier findings in a related appeal involving a co-accused, holding that the evidence on record supported the conviction for stealing goods on transit. The sentence was not disturbed as there was no appeal against it, and the issue was not raised on appeal. The appeal was therefore dismissed in its entirety.
Court Disposition
appeal dismissed
Orders
- The appeal is disallowed in its entirety.
- The Deputy Registrar shall annex the judgment in Migori Criminal Appeal No. 6 of 2018 to this judgment for completeness of record.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MIGORI
CRIMINAL APPEAL NO. 13 OF 2018
KENNEDY ODHIAMBO SEWE alias OWINO..............APPELLANT
VERSUS
REPUBLIC.......................................................................RESPONDENT
(Being an appeal arising from the conviction and sentence by Hon. M. M. Wachira,
Resident Magistrate in Migori Senior Resident Magistrate’s
Criminal Case No. 452 of 2016 delivered on 11 /12/2017)
JUDGMENT
1. As I was writing the judgment in this appeal I realized that I previously handled Migori Criminal Appeal No. 6 of 2018 Ferdinand Okoth Kagera vs. Republic where the Appellant therein had been jointly charged with the Appellant herein with inter alia the offence of Stealing Goods on Transitcontrary to Section 279(c) of the Penal Code. I disallowed the appeal on 30/04/2018 and this current appeal was filed on 02/05/2018. Whereas Ferdinand Okoth Kagera was the Turn-Boy, the Appellant herein, Kennedy Odhialo Sewe alias Owino was the driver of the subject vehicle.
2. Having already expressed my legal mind on the facts and the law in the circumstances of this matter and the Appellant herein having not opted to have the matter heard by another Judge in another station (this being a Single-Judge station) I can but only reiterate what I stated in the judgment in Migori Criminal Appeal No. 6 of 2018 Ferdinand Okoth Kagera vs. Republic.In reaching that decision I have carefully gone through the proceedings and considered the unsworn defense of the Appellant herein which I do not find it credible enough to create any reasonable doubts on the prosecution’s case.
3. On sentence, the Appellant being the driver of the vehicle had the greatest responsibility and duty of care on the goods. Indeed he ought to have been sentenced to stiffer penalty but since no appeal was lodged against sentence and the matter was not raised on appeal, I rest the issue thereat.
4. I therefore disallow this appeal in its entirety. The Deputy Registrar shall ensure that a copy of the judgment in Migori Criminal Appeal No. 6 of 2018 Ferdinand Okoth Kagera vs. Republicis annexed to this judgment for the completeness of record.
5. Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 14th day of February 2019.
A. C. MRIMA
JUDGE
Judgmentdelivered in open Court and in the presence of: -
Kennedy Odhialo Sewe alias Owino Appellant in person.
Mr. Kimanthi,Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.
Evelyn Nyauke– Court Assistant