[2010] KEHC 1604 (KLR)
The High Court found that the appellant was properly acquitted of robbery with violence under Section 296(2) of the Penal Code and convicted of stock theft under Section 278. The trial court's findings were supported by the evidence, including the identification of the appellant and the circumstances of the theft....
Source-derived case information.
- Citation
- [2010] KEHC 1604 (KLR)
- Parties
- Appellant: Komole Maiwa Loonirko; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 66 of 2009
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- appeal dismissed
- Legal Topics
- Robbery With Violence, Stock Theft, Sentencing Principles, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Komole Maiwa Loonirko
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the conviction for stock theft under Section 278 of the Penal Code was proper given the original charge of robbery with violence under Section 296(2).
- 2 Whether the sentence of 10 years imprisonment for stock theft was lawful and appropriate.
- 3 Whether the trial court erred in rejecting the appellant's defence and in the conduct of the trial.
Ratio Decidendi
The High Court found that the appellant was properly acquitted of robbery with violence under Section 296(2) of the Penal Code and convicted of stock theft under Section 278. The trial court's findings were supported by the evidence, including the identification of the appellant and the circumstances of the theft. The appellant's defence was considered and rejected on the merits. The sentence of 10 years imprisonment was within the statutory maximum and not manifestly excessive. The appeal was dismissed as there was no basis to interfere with either the conviction or the sentence imposed by the trial court.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of 10 years imprisonment for stock theft are upheld.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Appeal 66 of 2009
KOMOLE MAIWA LOONIRKO::::::::::::::::::::::::::::APPEALLANT
=VERSUS=
REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from the decision ofHon. H.M. Nyaga ESQ. Senior Resident Magistrate delivered on 21st April, 2009at the SeniorResident Magistrate’s Court atKabarnet in Kabarnet SRM.CRC. No. 425 of2008
on conviction and sentence)
JUDGMENT
I.Background
1. In this Criminal Appeal, the Appeallant appeared before the Senior Magistrate’s Courts at Kabarnaet and was charged with the offence of :
I.Robbery With Violence
Contrary to Section 296 (2) of the Penal Code
The Particulars of offence being:
Thaton the 22nd November 2007 at Kaiabata Location, in Baringo District within the Rift Valley Province jointly with others not before Court while armed with a dangerous weapon namely an AK 47 riffle robbed Rael Reriki Rotichof 83 goats all valued at Kshs 100,000/= and at immediately before or immediately after the time of such robbery wounded Michael Komen.
2. A Second Count was preferred being:
II.Stealing of Stock
Contrary to Section 278 of the Penal Code.
The Particulars ofOffence being:
On the 5th day of June 2008 at Loiwat Location Baringo EastDistrict within the Rift Valley Province, jointly with others not before Court stole one goat valuedat Kshs 2,000/= the property of Tapegwang Lokomolia
3. The Appeallant Original Accused, pleaded not guilty to both counts on 22nd July 2008. His case was set down for trial in whichevidence was disclosed howthe Complainant P.W.4 had hired the Appeallant as a herds boy.On the night of 21/22 November 2007, she heard noises coming from the goat pen.Shekept quiet till the noise ceased.After an hour, she went out only to find all 83 goats had been stolen.
4. The Assistant Chief P.W.3 on receiving this information notified the police who gave pursuit.One of the police P.W.1 saw the Appeallant who shotat himthenfled leaving the goats behind.
5. The Appeallant wasarrested and charged.
6. In his defence the Appeallant stated thathe was at the market centre to buy flour.He wasinformedthat he waswanted at the police station.Hewas questionedand charged with the offence.He denied that he was a robber.
7. The Trial Magistrate found that according to theGathuri Njuguna –vrs Republic (1965) EA 583 Case thatto prove Robbery it must be committed openly and in the presence of others.The case in question showed that the Appeallant ought to be charged withstock theft.The Appeallant was convicted on Count II for stock theft Contrary to Section 278 of the Penal Code and Sentenced to 10 years imprisonment.
II.Appeal
8. Being dissatisfied with the conviction and sentence the Appeallant appealed on grounds that::
(i)He pleaded not guilty to the offence
(ii)The trial Magistrateerred in
convicting him for stock theft instead of convicting and or charginghim for Robbery with Violence Contrary to Section 276 (2) Penal Code
(iii)The Trial Magistrateerred in
rejecting his defence
(iv)Failing to call witnesses.
9. In his submissions before Osiemo J, the Appeallant claims he was tried and convicted for a lesser offence of Robbery with Violence Contrary to Section 296(1) penal Code and sentenced to 10 years imprisonment.He prayed that the sentence be reduced.
10. The State most certainly objected to the said request of reducing the sentence stating the maximum sentence was that of 14 years imprisonment.
III.Opinion
11. The Appeallant faced two Counts before the Senior Magistrate’s Court, that is:
(i)Robbery With Violence Contrary to Section 296 (2) Penal Code that carriesa Death Penalty
(ii)Stock Theft Contrary to Section 278 Penal Code that caries 14 years imprisonment
12. It thereforeis notcorrect that the
Appeallant’s case was a convictionof simple Robbery duly reduced? By the Court.The Appeallant in fact was acquitted on the offence of Robbery with violence Contrary to Section
296 (2) Penal Codebut convicted on the issue of Stock Theft relied on.
12. The issue of conviction, apart from the petition of appeal was never dealt with in submissions by the Appeallant. The Petition of Appeal relied on the issue that the defence was rejected and not relied on.
13. To thisend, the Appeallant may not have brought out this point in his submissions.He was recognized by those whom he is alleged to have attacked.
14. At the appeal stage the Appeallant’s prayer only for the reduction of his sentence from 10 years imprisonment.
15. I find herein on the issue of conviction that the Appeallant had abandoned this.On the issue of sentence, the same was within the law.I am not inclined to interfere with this case.
16. The Appealis dismissed.
Dated this 1st day of September 2010 at ELDORET
M.A. ANG’AWA
JUDGE.
Advocate
(i)J.K. Chirchir, Senior State Counsel, instructed by the Office of the Attorney General for the State-Present
(ii)Komole Maiwa Loonirko, Appeallant in person-Present