[2017] KEHC 1989 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL APPEAL NO. 8 OF 2017

KULLOW ADAN ALI......................................APPELLANT

VERSUS

REPUBLIC………………………….....…..RESPONDENT

JUDGMENT

The appellant was charged in the Magistrate's Court at Wajir with one main count and one alternative count. In the main count he was charged with two others. In the alternative charge each of the three was charged separately.

The main count was for burglary contrary to Section 304 (2) and stealing contrary to Section 279 (b) of the Penal Code. The particulars of the offence were that together with Bishar Abdi Isaack and Robert Kirimi Kariti on the night of 2nd and 3rd December, 2016 at Hodhan location in Wajir East Sub-county within Wajir County broke and entered the dwelling house of Abdishakur Hussein with intent to steal therein and did steal therein 1 elector fruit blender, 1 Zuku remote, 1 Sonny TV remote, 1 Philips iron box, 2 TV cables , 1 Euro Star Decoder and assaulted clothes all valued at Kshs.55,000/= the property of the said Abdishakur Hussein.

In the alternative he was charged alone with handling stolen goods contrary to Section 332 (1) (2) of the Penal Code. The particulars of the offence were that on the 3rd December, 2016 at Wajir township in Wajir East Sub-county within Wajir County otherwise than in the cause of stealing dishonestly retained 1 black suitcase and a multi-coloured nylon bag all containing assorted clothes knowing or having reasons to believe them to be stolen goods.

The 2nd accused Bashir Abdi Isaack was also charged with an alternative count of handling stolen goods. The particulars of the offence were that on the same day and place otherwise than in the course of stealing dishonestly retained 1 black school bag containing assorted clothes, 2 TV cables , 1 Zuku remote, and 1 Sonny TV remote knowing or having reason to believe to be stolen goods.

The 3rd accused Robert Kirimi Kariti was also charged with an alternative count of handling stolen goods. The particulars of the offence were that on the same day and place otherwise than in the cause of stealing dishonestly retained 1 Eurostar decoder and 1 Phillips iron box knowing or having reason to believe them to be stolen goods.

The three denied all the charges. After a full trial, the appellant and the 2nd accused Bashir Abdi Isaack were found guilty and convicted on the main count of burglary and stealing. The appellant was sentenced to serve 4 years jail on each limp of the offence. The sentences to run concurrently because the probation officer's report showed that he was a habitual offender. The 2nd accused was put on probation for 2 years as he was a first offender. The 3rd accused was acquitted of all the offences.

The appellant has now come to this court on appeal. He filed his grounds of appeal on 6th March 2017 stating as follows:

1. That he pleaded not guilty to the charge.

2. That the Trial Magistrate erred in relying on uncorroborated evidence of PW 2 who said that the locks were cut while no such evidence was found.

3. The Trial Magistrate erred in discharging one of the accused and placing the other on probation but passing a harsh sentence on the appellant.

4. The Trial Magistrate erred by relying on the evidence of the complainant who disowned ownership of some of the items produced as exhibits such as padlocks of the house.

The appellant also filed written submissions in the appeal which I have perused and considered. At the hearing of the appeal, the appellant relied on the written submission and elected not to make oral submissions.

The Learned Prosecuting Counsel Mr. Okemwa, in a brief response stated that the conviction was proper and the sentence lawful.

This is a first appeal. As a first appellate court, I am required to re-examine the evidence on record and come to my own conclusion and inferences. In doing so, I am required to take into account the fact that I did not have the opportunity of the trial court of seeing witnesses testify in order to determine their demeanor. See the case of OKENO VS REPUBLIC (1972) EA 32.

I have re-evaluated the evidence on record. The appellant was not seen breaking the house of the complainant PW 1 Abdishakur Hussein. The incident occurred at his house in South C Wajir town where the complainant was in Eastleigh Nairobi where he was a Secondary School teacher. He was called by PW 2 Abdisalan Rashid Ali his in-law on the phone from Wajir and he came to Wajir and noted that the padlock of the house was intact but the house locks had been broken and items missing. He described those items in evidence and identified some of the missing items in court.

The connection of the appellant to the offence is on the basis of the evidence of PW 3, Abdiaziz Mohamed an Assistant Chief Baraza park Sub-location Township Location who on the 3rd December, 2016 at around 6. 00 am while from the Mosque met a man carrying a black nylon bag who looked tired and without shoes. He was informed by miraa sellers that the person had been selling items and he asked him about those items. The man told him the items belonged to his wife. PW 3 with the assistance of a nearby guard searched the bag and found a photo which created the suspicion to them that the items were stolen. They enquired from transport companies such as Transcounty and Sabrin buses if they had lost anything but the answer was negative. They inquired more from the man because they found receipts in the bag and the man admitted that he had broken into a house. When they visited the house they found it had been opened. It was the same appellant who informed them that he was in the company of another person whom later he pointed as the 2nd accused.

The appellant was thus arrested and charged and evidence tendered. In his defence, the appellant stated that he was a water vendor and that on 3rd December, 2016 he fetched water and proceeded to Equity bank to supply his customers when a chief who was his previous employer and with whom he had issues called him and told that he had committed an offence of stealing items. He denied committing the theft.

When the appellant said that the evidence of PW 2 was uncorroborated, in my view that cannot be the case. The complainant PW 1, identified some of the items recovered as belonging to him or his wife. In any event, there is no regal requirement that the evidence of a single witness generally should be corroborated. The arrest and alleged position of the items by the appellant was after day break. There could be no possibility of mistaken identity. When the appellant says that the chief had issues with him, in my view, that was an afterthought. Nothing to do with his relationship with a chief PW 3 was put by the appellant in his cross examination. I find therefore, that the Magistrate was correct in finding that the appellant was in possession of the items in the morning of 3rd December, 2016.

The breaking was said to have occurred in the night of 2nd/3rd December, 2016. It follows that the appellant had in his possession recently stolen goods and as such he presumed to be either the thief or a handler. This principle was clearly spelt out in the case of MAINA and OTHERS –VS- REPUBLIC (1986) KLR 301 where the Court of Appeal stated that such recent possession is evidence from which the court can infer that he is the house breaker.

With such inference in mind, the burden shifted to the appellant to explain or show how he came to be in possession of the said items. The appellant herein did not explain in his defence how he came to be in possession of those items. As such in my view, the trial court was justified in finding that he was the house breaker and thief. I thus uphold the conviction of the trial court. The sentence for burglary under Section 204 is a maximum of 10 years imprisonment. The maximum sentence for stealing contrary to Section 279 (b) is imprisonment for 14 years. The appellant was sentenced to 4 years imprisonment on each ream of the offence, the sentences to run concurrently. The prosecutor said that the prosecution did not have previous records. However, the trial court ordered for a report from the probation officer who did not recommend non-custodial sentence for the appellant. The report of previous conviction that is contained in the probation report was given by a brother of the appellant. There is no information given about the cases in which he was convicted for burglary and stealing. It is thus not certain to me that the appellant was a serial offender.

The fact that the other person was put on probation did not mean that the appellant should have been put on probation as that other accused was 45 years old and was also suffering from TB. My view is however that the custodial sentence and the duration of probation should have been syclonized as they were found guilty and convicted of the same offence. I will thus reduce the sentence to 2 years imprisonment on each of the 2 reams of the charge as the probation sentence was for a duration of 2 years.

Consequently I dismiss the appeal against conviction and uphold the conviction of the trial court. I however set aside the sentence and order that the appellant will instead serve 2 years imprisonment on each of the 2 reams of the charge and the sentences will run concurrently. This means that the appellant will serve a total of 2 years imprisonment from the date from which he was sentenced by the trial court.

It is so ordered.

Dated and delivered at Garissa on 14th November, 2017.

GEORGE DULU

JUDGE