[2023] KEHC 26315 (KLR)

Monka & 2 others v Republic (Criminal Appeal E008 of 2022) [2023] KEHC 26315 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26315 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E008 of 2022

DR Kavedza, J

December 8, 2023

Between

Michael Monka

1st Appellant

Alfred Koileken

2nd Appellant

Vincent Sayoriole

3rd Appellant

and

Republic

Prosecution

(An Appeal arising out of the judgment and sentence of Hon. B. Cheloti SRM in Criminal Case No. 1599 of 2018, Republic v Michael Monka, Alfred Koileken & Vincent Sayioriole)

Judgment

1. The appellants were charged and after a full trial convicted for the offence of stealing stock contrary to section 278 of the Penal Code, Cap 63 Laws of Kenya. They were sentenced to serve seven (7) years imprisonment. Being dissatisfied, they filed an appeal challenging the conviction and sentence.

2. In their petition of appeal dated 6th October 2021, they raised 5 grounds. In a coalized form they are as follows. First, that the learned magistrate erred by holding that the prosecution had proved their case beyond reasonable doubt. Further, that the trial court erred in convicting them on contradictory and unsatisfactory evidence.

3. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

4. The prosecution called five (5) witnesses in support of their case. Catherine Emmanuel (PW1) testified that on 21/10/2018 while she was at home, she woke up to milk her cows only to realize that her two donkeys were missing. PW1 told the court that she had a suspect in mind and immediately informed her husband (PW2) and son of the incident. She later saw the accused persons being arrested having been found in possession of the carcasses of the two donkeys.

5. Emmanuel Lekanto (PW2) told the court that on the morning of 21/10/2018, PW1 informed him that their two donkeys were missing. He, together with his son commenced the search for the two donkeys. When they reached outside the gate of the 3rd appellant’s home, they found the carcasses of the two donkeys which the accused persons were planning to put in a motor cycle. PW1 told the court that she was able to identify the donkeys as they had a special mark. The matter was reported to the area chief and the accused persons were later arrested.

6. Joseph Lempoi (PW3), the area chief testified that on the material date, he received a report from PW2 that his donkeys had been stolen and slaughtered near his home. PW3 then proceeded to PW1’s home where he found many people who showed him the footsteps that they had traced to the carcasses of the two donkeys. He further told the court that he stopped the angry members of the public from attacking the accused persons. He then requested for police officers from Kajiado Police Station who went to the scene and arrested the accused persons.

7. Police Constable, William Serem (PW4), stationed at Kajiado Police Station told the court that he received instructions from the OCS to accompany his colleagues to Sajiloni where a case of stock theft had been reported. PW4 and his colleagues met PW3 who took them to the crime scene and found the carcasses. The accused persons were arrested at the scene and charged with the current offence.

8. No 58160 Corporal Eric Githinji (PW5) attached to DCI as scenes of crimes Officer told the court that he received a call from the OCS to accompany other police officers to visit a crime scene. PW5 took photographs of the carcasses that he found on the scene and produced the same as exhibits.

9. At the close of the prosecution case the accused persons were put on their defence. The 1st and 3rd accused persons tendered unsworn defence whereas the 2nd accused Person opted to remain silent.

10. Michael Monka (DW1) denied committing the offence. He testified that on 21/10/2018, he went to the MCA'S office to follow up a bursary application for his children. He was later dropped near home where he attended a neighbour’s ceremony. When he was on his way home, he saw a crowd of people walking towards him and informed him that the chief wanted to see him. He accompanied them to the direction of the chief’s office but then he proceeded to Nalepo Bar. While he was there, a motor vehicle came with some people inside who pointed at him and said that he is one of ‘them’. He averred that his complainant was his business rival.

11. The 3rd accused told the court that on 21/10/2018, he was attending a ceremony at the neighbor’s home when some members of the public including the complainant went to him and informed him to step aside. They told him that he was a suspect in a case of stock theft and they proceeded to Nalepo pub where a motor vehicle appeared and he was arrested alongside the 1st and 2nd accused persons. He denied committing the offence.

12. In the end, the trial court found the accused persons guilty and convicted them accordingly.

Analysis and Determination 13. The appellants challenged the weight of the prosecution’s evidence. Summarily, the appellants challenged the totality of the prosecution case and contended that the offence of stealing stock was not proved beyond reasonable doubt. To the contrary, the prosecution submitted that the evidence submitted by the witnesses was overwhelming and proved beyond reasonable doubt that the accused persons committed the offence.

14. The issue for determination is whether the prosecution proved the case of stock theft to the required standard.

15. Stealing is defined in the Black’s Law dictionary 8th Edition as:“To take (personal property) illegally with the intent to keep it unlawfully”.

16. The definition of stealing as found in Section 268 of the Penal Code is:“A person who fraudulently and without claim of right takes anything capable of being stolen on fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.”

17. The evidence led by the prosecution before the trial court through 5 witnesses was that the complainant (PW1) found her two donkeys missing in the morning of 21/10/2018. She suspected the 3rd appellant and informed her husband, PW2, who left to search for the donkeys in the company of his son. It was PW2’s testimony that upon reaching the 3rd appellant’s home, he found that the donkeys had been slaughtered and were being loaded on a motorcycle. He then reported the matter to the area chief PW3, who corroborated PW2’s evidence that they found the 2 donkey carcasses in possession of the appellants. PW1 positively identified the donkeys as they had special marks. PW3 protected the appellants from the infuriated villagers who wanted to attack them. PW1, PW3 and PW4 corroborated the evidence of PW2 that the donkeys were recovered from the appellants and hence their arrest.

18. The appellants denied committing the offence and told the court that they were arrested after attending a ceremony at the neighbor’s home. They further stated that they were taken to the crime scene where they were forced to take a photograph. The prosecution evidence however shows that the two donkeys were recovered having been slaughtered at the 3rd appellant’s home and the appellants did not give any believable explanation as to how they came to be in possession of the donkey carcasses. The defences raised were not plausible.

19. In my view, the ingredients of the offence of stock theft had been sufficiently proved in that PW1 owned two donkeys that went missing and the appellants were found in possession of the said animals having been slaughtered and being loaded in a motorcycle at the home of the 3rd appellant.

20. Bearing the above in mind, it is my view that the prosecution proved its case beyond reasonable doubt. They produced convincing and credible evidence of stock theft perpetrated by the appellants. I therefore affirm the conviction for the offence of stock theft against the appellants.

21. On sentence, the appellants were sentenced to serve seven (7) years imprisonment. The appellants have argued that the sentence imposed against them by the trial court was harsh and excessive. It is trite law that an appellate Court can only interfere with the sentence imposed by the trial court if it is satisfied that in arriving at the sentence the trial court did not take into account a relevant fact or that it took into account an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive (See Wanjema v. Republic (1971) EA 493).

22. In my view, the sentence of seven (7) years imprisonment is excessive punishment for the offence of theft of two donkeys valued at Kshs. 16,000/-. However, I agree that the offence is rampant and ought to be discouraged by an appropriate sentence. In the circumstance, I therefore set aside the sentence of seven (7) years imprisonment against the appellants and substitute it with an order of compensation to the complainants of the value of stock being Kshs 16,000 in default to serve (3)years imprisonment.Orders accordingly.

JUDGMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. ____________________D. KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellant presentMateli C/A