[2016] KEHC 2490 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO. 171 OF 2015

MARTIN MUREMI MUGO ………………….…………….. APPLICANT

Versus

REPUBLIC ………………………………………………… RESPONDENT

(Being an appeal from the original conviction and sentence inNanyuki Chief Magistrate’s Court Criminal Case No. 1028 of 2014by Hon. E. BETT Senior Resident Magistrate on 3rd July 2015).

JUDGMENT

1. MARTIN MREMI MUGO,the appellant was charged before the Nanyuki Chief Magistrate’s Court with the offence of housebreaking contrary to section 304 (1) of the Penal Code, Cap 63, and the offence of stealing contrary to Section 279(b) of Cap 63. He pleaded not guilty but after trial he was convicted of both offences. The trial court sentenced him to imprisonment of 3 years in respect to the offence of house breaking and 2 years in respect to the offence of stealing. Both sentences were to run concurrently. The appellant was aggrieved by his conviction and sentence and has filed this appeal against both.

2. This being the first appellant court it is expected to consider a fresh the evidence adduced at the trial and to thereafter arrive at its own decision on that evidence. The first appellant court must weigh conflicting evidence, and be aware that the trial court has had the advantage of hearing and seeing the witnesses.

3. The case presented by the prosecution was that the complainant Mary Wanjiru (Mary) left her home on 16th November 2015 at 8. 00 a.m. and locked her door with a padlock. The appellant who was the boyfriend of Mary at 3. 00 p.m. on that material date went to Gladys Nyambura’s (Gladys) (PW 2) kiosk and informed her that he had left money, belonging to his boss in Mary’s house. He also said that he had locked his key to Mary’s house inside the house. He informed Gladys that he would break the padlock on Mary’s door then replace it with a new padlock. Gladys said she was not alarmed by that since the appellant used to visit Mary. That was what he did and after showing Gladys the money he retrieved from the house he left the key of the new padlock with Galadys requesting her to pass it on to Hanna Wairimu (Hanna) since Hanna was a neighbour of Mary. Hanna Wairimu (PW 3) confirmed that Gladys gave her the key with instructions to pass it on to Mary.

4. Mary when she returned to her home at 10. 00p.m. she was handed the key to a new padlock by Hanna. When she opened her door she realized that her money, which was in the bedroom, Kshs.27,400 was missing. She reported the matter to the police and later was to receive a text through the cell phone, from the appellant, by which the appellant promised to return her money. That text message was seen by the trial magistrate.

5. Appellant in his sworn defence went on a targent which had not been addressed to prosecution’s witnesses and stated that on the material date Mary loaned him Kshs.300 to enable him travel to his mother’s home to assist her sell rice. That on his return Mary began to insult him as he gave her Ksh.500 note.

6. In his grounds of appeal appellant faulted the trial court for convicting him on what he called false evidence; and faulted the prosecution for failing to call an eye witness to testify. The other grounds of appeal are not supported by the record of the lower court’s proceedings.

7. Appellant did not elaborate on his statement that the prosecution’s evidence was false. In my view I agree with the finding of the trial court that the appellant was linked to the breaking-in and the theft by Gladys who was well known to him. The incident occurred during the day and there was therefore no possibility of mistaken identity. Indeed appellant seems to have held a prolonged discussion with Gladys before and after breaking into Mary’s house. Although appellant submitted that the padlock, the new one, was not produce in court, the fact is that it was indeed produced and was marked as exhibit number 3. The evidence of Gladys that it was the appellant who broke into Mary’s house and stole Mary’s money was corroborated by the text message sent to Mary by the appellant whereby the appellant promised to pay back the money to Mary. Appellant did not cross examine Mary on that evidence and more importantly did not deny it in his defence evidence.

8. Although appellant by his second ground stated that the prosecution failed to call an eye witness he did not elaborate who that eye witness was. In re-examining the prosecution’s evidence it is not evidence that there was any other witness except Gladys. There is a mention of a motorcycle rider (boda boda) but he only played the part of going to buy a new padlock. That ground therefore is rejected.

9. On sentencing the appellant did not submit on it. It is worth noting that the maximum sentence in respect to the offence of breaking into a dwelling house, as the appellant did, is imprisonment of 7 years. The maximum sentence for stealing is 14 years. Appellant was sentence to 3 years and 2 years respectively to run concurrently. Bearing in mind the principle that guides an appellant court when considering an appeal against sentence I am of the view that there is no basis to interfere with trial court’s sentence. In reaching that that decision I am guided by the case MACHARIA vs REPUBLIC (2003) KLR 115, where it was held:-

“The court does not alter a sentence on the mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence ….. The court will also not ordinarily interfere with the discretion exercised by a trial judge unless as was held in James vs Republic (1950)EA 147. It is evident that the Judge has acted upon some wrong principles or overlooked some material facts.”

10. The appellant’s appeal against conviction and sentence has no merit and it is dismissed.

DATED AND DELIVERED THIS 26TH DAY OF OCTOBER 2016.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant – Njue

Appellant: Martin Muremi Mugo …………………….

For the State: …..............................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE