[2022] KEHC 14561 (KLR)

Maitha & another v Republic (Criminal Appeal 74 & 75 of 2020) [2022] KEHC 14561 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14561 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal 74 & 75 of 2020

GMA Dulu, J

October 19, 2022

Between

Vivian Mutinda Maitha

1st Appellant

Nicodemus Musyoka Kisili

2nd Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. A,N Ndungu in Makindu Senior Principal Magistrate’s Court Criminal Case No. 991 of 2016)

Judgment

1. The two appellants a wife and husband were charged in the magistrate court jointly with stock theft contrary to section 278 of the Penal Code. The particulars of offence were that on the night of 20th and 21st August 2016 at Kwathiro village in Nzaui District within Makueni County, jointly stole one ashier cow valued at Kshs.70,0000/= the property of Michael Kiio Mutulu.

2. Nicodemus Musyoka Kisili was charged with a second count of escape from lawful custody contrary to section 123 of the Penal Code. The particulars of offence were that on 4th May 2016 at Mukaa area in Nzaui District within Makueni County, being in lawful custody of Sgt. Hussein Kuliye and Ap. Cpl Rajab Charo both of Mulala AP post, escaped from their custody having been arrested as a suspect of stock theft.

3. Both denied the charges. After a full trial, they were convicted of the offence charged. They were sentenced to 3 years’ probation sentence each for the 1st count of stock theft. The second appellant Nicodemus Musyoka Kisili was sentenced to one (1) year probation on the second count of escape from lawful custody and the sentences on both counts ordered to run concurrently, which was a total of 3 years’ probation.

4. Dissatisfied with the conviction and sentence of the trial court, the appellants have come to this court on appeal on the following grounds –1. The learned trial magistrate erred in law and fact in failing to find that the prosecution case was predicated on an incurably defective charge sheet that was predicted on a offences allegedly committed in August 2016 while all the prosecution witness and all evidence was based on an offence that was committed in March 2016. 2.The learned magistrate grossly erred in both facts and law by basing her findings and subsequent conviction on an Occurrence Book entry that was never produced/formed part of the prosecution exhibits.3. The learned magistrate erred in law and fact by failing to properly analyse the evidence on record and consider that the prosecution did not prove their case beyond reasonable doubt as required in law.4. The learned magistrate failed to consider any of the compelling evidence adduced by the appellant at the trial.5. The learned magistrate erred and proceeded on the basis of discredited and unreliable evidence in arriving at her findings.6. The learned magistrate gravely erred in both law and facts when she rejected the appellant’s evidence without explaining the reasons thereof.7. The learned magistrate gravely erred both in law and facts when she convicted the appellants without considering the fact that the charges were a mere and malicious fabrication based on pre-existing grudge with the complainant and his neighbours.

5. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellants and those filed by the Director of Public Prosecutions.

6. This being the first appellate court, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno –vs- Republic [1972] E.A 32.

7. In proving their case, the prosecution called seven (7) witnesses. Each of the appellants on their part, tendered unsworn defence testimony and did not call any additional witness.

8. The appellants have raised technical as well as substantive grounds of appeal. The technical ground is that the charge was defective in that the date of count I for theft of stock was night of 20th and 21st August 2016, while all the prosecution evidence was that the alleged offence occurred in March 2016.

9. On this ground, indeed the trial magistrate in the judgment stated that the offence occurred on the night of 20th and 21st August 2016. That is the date of the original charge. However, on 18th January 2017, the initial charge which was filed on 9th August 2016 was amended, and the appellants pleaded to the new charge. In any event, the appellants had already been arrested on 08/08/2016 and all the evidence on record was that the theft occurred in March 2016.

10. I also note that the trial magistrate dealt at length with the issue of date of the offence of theft of stock. In my view even assuming that the charge was defective, such defect complained of was not a fatal defect as the appellants were not misled in any way, as both the dates of their arrest and the evidence of prosecution witnesses was clear on the date of the alleged theft of the cow. I find that ground to have no legal basis and dismiss the same.

11. Coming now to the substantive grounds, I find that the evidence of prosecution witnesses is consistent on what occurred. Of course no witness saw the appellants or any of them steal the cow. However, there is evidence on record that each one of them dealt with or was in possession of the cow when it was sought for, and sold it to Pw5 Lucy Kioko for Kshs.40,000/= though a lesser amount was paid due to a pre-existing debt.

12. Though no receipt was produced for the sale, it has to be borne in mind that Pw5 was not a business woman buying cows, and thus could not be expected to have issued a receipt. The issue before the trial court was whether her evidence was credible and believed by the trial court.

13. Having re-evaluated the evidence on record, I am in agreement with the trial magistrate that the evidence of Pw5 was credible, and I find that indeed the cow was sold to her by the appellants, though each played a different role with Vivian Maitha offering the cow for sale and receiving the payment, and Nicodemus M. Kisili being present and physically acknowledging the payment for the cow which was said by Vivian to belong to him, her husband.

14. I thus find that the prosecution proved beyond any reasonable doubt that the two appellants were the thieves of the cow based on the doctrine of recent possession.

15. With regard to the charge of escape from lawful custody by the 2nd appellant, the evidence of Pw5 Lucy Kioko, Pw6 Sgt. Rajab Chalo, and Pw7 PC Obed Kosgey is very clear on what happened on 04/04/2016 at the residence of Nicodemus Musyoka Kilili, wherein he escaped after arrest, which greatly delayed the charging of the appellants in court, as he was nowhere to be seen for some months. In my view, the prosecution proved beyond any reasonable doubt that Nicodemus Musyoka Kisili escaped from lawful custody as charged.

16. In my view also, there was no evidence of an existing grudge between any of the appellants and prosecution witnesses. On the allegations of assault, and sale of cow belonging to the first appellant, Nicodemus Musyoka Kisili, my view is that if the allegation is true there are in existence, ways of pursuing compensation through other avenues including civil litigation. Again, even if the sale of his cow is true, it cannot be a defence to the charges herein, or the conviction therefrom. The conviction thus has to be upheld.

17. I note also that the probation sentences imposed by the trial court are lawful, and infact lenient.

18. I thus find no merits in the appeals. I dismiss both appeals and uphold the conviction and sentence of the trial court.Right of appeal explained.

DELIVERED, SIGNED & DATED THIS 19TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.................................GEORGE DULUJUDGE