[1983] KEHC 35 (KLR)
The court found that the appellant's conviction for handling stolen property was not appropriate given the evidence of recent possession of the stolen items within 24 hours of the burglary. Applying the doctrine of recent possession, the court held that the evidence supported a conviction for burglary and stealing...
Source-derived case information.
- Citation
- [1983] KEHC 35 (KLR)
- Parties
- Appellant: Meshololi Ole Sangala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 457 of 1983
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal partially allowed; conviction for handling stolen property substituted with conviction for burglary and stealing; sentence reduced.
- Legal Topics
- Burglary, Stealing, Handling Stolen Property, Recent Possession, Sentencing, Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meshololi Ole Sangala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for handling stolen property was proper in light of the evidence of recent possession.
- 2 Whether the evidence supported a conviction for burglary and stealing under Sections 304(2) and 279(b) of the Penal Code.
- 3 Whether the sentence imposed was appropriate given the circumstances.
Ratio Decidendi
The court found that the appellant's conviction for handling stolen property was not appropriate given the evidence of recent possession of the stolen items within 24 hours of the burglary. Applying the doctrine of recent possession, the court held that the evidence supported a conviction for burglary and stealing under Sections 304(2) and 279(b) of the Penal Code, rather than handling stolen property. The court substituted the conviction and set aside the original sentence, imposing a new sentence of three years' imprisonment and four strokes of the cane, with custodial sentences to run concurrently. The appeal succeeded only to the extent of the substitution of the conviction and sentence.
Court Disposition
Appeal partially allowed; conviction for handling stolen property substituted with conviction for burglary and stealing; sentence reduced.
Orders
- Conviction for handling stolen property set aside.
- Conviction for burglary and stealing under Sections 304(2) and 279(b) of the Penal Code substituted.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
crim app 457 of 83
MESHOLOLI OLE SANGALA…………………………………………APPELLANT
Versus
REPUBLIC……………………………………………………..……...RESPONDENT
Appellant absent, not wishing to be present and unrepresented.
AR Rebello (Senior State Counsel) for Respondent
JUDGMENT
The appellant was jointly charged with another person on one main count of burglary and stealing contrary to Sections 304(2) and 279(b) of the Penal Code and on an alternative charge of handling stolen property contrary to Section 322(2) of the Penal Code (Cap 63). The appellant was eventually found guilty on the handling charge and accordingly convicted and sentenced to seven years’ imprisonment hard labour plus five years’ supervision by the police upon his release from prison.
The complainant Jackson Mwakoma Chola (PW 1) testified that on February 26, 1985 at about 8. 30 pm he locked his house and went to visit a friend. When he (PW 1) came back the following day he found his house broken into and property stolen from therein. The Matter was reported to the police. On that sane day (February 27, 1985) the appellant was found in possession of the property which had been stolen from the complainant's house. The appellant had no explanation to offer. From the above it is clear that the appellant's conviction was based on the doctrine of recent possession. Since the appellant was found in possession of stolen property only 24 hours after the house had been broken into the rebuttable legal presumption is that the appellant is the one who broke into the complainant's house and stole from therein. Where a court is faced with evidence of recent possession then the matter should be resolved in favour of the person charged by convicting him of the lesser offence rather than the more serious charge of handling stolen property which carries a minimum sentence of seven years’ imprisonment.
Hence in view of the foregoing I find that the evidence on record supports the charge of burglary and stealing contrary to Sections 304(2) and 279(b) of the Penal Code. Hence I substitute the conviction on the charges of handling with that of burglary and stealing contrary to Sections 304(2) and 279(b) of the Code (Cap 63). The sentence of seven years’ imprisonment hard labour and police supervision for five years is set aside. In its place the appellant is to serve a sentence of three years and two (2) strokes of the cane on each limb of the charge. The custodial sentences on the two limbs to run concurrently so that the appellant will serve sentence of three (3) years imprisonment and will receive a total of four (4) strokes of the came. Only to that limited extent does this appeal succeed. Order accordingly.
Delivered at Nairobi this 25th day of November, 1983.
E O’KUBASU
JUDGE
25. 11. 83
coram: E. O’KUBASU
Mr Gatonye for Respondent
Appellant absent
ORDER: Judgment read and delivered.