[1983] KECA 17 (KLR)
The court found that the appellant was in possession of the stolen cattle shortly after the theft, and that the identification of the cattle and the skin by the complainant was credible and unchallenged. The appellant's unsworn defence was found to be unworthy of belief and was properly rejected by the trial...
Source-derived case information.
- Citation
- [1983] KECA 17 (KLR)
- Parties
- Appellant: Kimutai Arap Ngetich; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 18 of 1983
- Procedural Posture
- Criminal Appeal / Second Appeal From Summary Rejection of First Appeal by High Court
- Outcome
- appeal dismissed
- Judges
- CB Madan, KD Potter
- Legal Topics
- Stock Theft, Possession of Stolen Property, Criminal Procedure, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimutai Arap Ngetich
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal From Summary Rejection of First Appeal by High Court
Legal Issues
- 1 Whether the conviction for stock theft under section 278 of the Penal Code was supported by the evidence.
- 2 Whether the summary rejection of the first appeal by the High Court was proper.
- 3 Whether the appellant was properly identified as being in possession of the stolen cattle.
Ratio Decidendi
The court found that the appellant was in possession of the stolen cattle shortly after the theft, and that the identification of the cattle and the skin by the complainant was credible and unchallenged. The appellant's unsworn defence was found to be unworthy of belief and was properly rejected by the trial magistrate. The doctrine of recent possession applied, and there was no merit in the appeal. The summary rejection of the first appeal by the High Court was proper as the appeal was manifestly without merit. Accordingly, the conviction and sentence were upheld and the appeal dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(Coram: Madan and Potter JJA and Chesoni Ag JA)
CRIMINAL APPEAL NO 18 OF 1983
BETWEEN
KIMUTAI ARAP NGETICH …………………………………… APPELLANT
AND
REPUBLIC ……………………………………………………… RESPONDENT
(Appeal from a judgment of the High Court of Kenya at Nakuru (Masime J) dated 22nd October, 1981
in
Criminal Appeal No 435 of 1981)
JUDGMENT OF THE COURT
MADAN J A
The appellant Kimutai Arap Ngetich was convicted of stealing stock, contrary to section 278 of the Penal Code (cap 63). This is a second appeal, the first appeal to the High Court having been summarily rejected under section 352(2) of the Criminal Procedure Code (cap 75).
On the night of February 9/10, 1981 13 head of cattle were stolen from Chamaner Farm.
They were the property of Mr Simion Kiptigich Chebutuk.
The appellant had gone to live at Chebungei with 3 head of cattle on a three-acre parcel, which he bought from Kipketach arap Kitur. On February 11, 1981 he brought to his farm ten head of cattle. He slaughtered one head and sold the meat to neighbours. Mr Kitur made a report to the police at Bomet. The police arrived at the appellant’s farm with Mr Chebut on February 13 where they recovered nine head of cattle and one skin, which was buried in the ground.Mr Chebutuk identified as his cattle which had been stolenfrom his farm, also the skin of one of them. The appellant had disappeared from his farm arrested on June 22, 1981.
If the appellant had been present at the farm then we would have unhesitatingly said that he was caught red-handed in possession of the stolen cattle.
The appellant made an unsworn statement in his defence, which was totally unworthy of belief. The trial magistrate ejected it.
There is no merit in this appeal. It is ordered to be dismissed.
Dated at Nakuru this 21st day of March, 1983.
C B MADAN
JUDGE OF APPEAL
K D POTTER
JUDGE OF APPEAL
Z R CHESONI
AG JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR