[2008] KEHC 575 (KLR)
The court found that the testimonies of PW3 and PW4, who both saw the appellant driving the stolen cow towards Transmara District at the material time, provided direct and credible evidence linking the appellant to the theft. The identification was reliable as the appellant was well known to both witnesses. The...
Source-derived case information.
- Citation
- [2008] KEHC 575 (KLR)
- Parties
- Appellant: Mwita Masioga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against sentence allowed; conviction upheld; sentence reduced to period served; appellant set at liberty unless otherwise lawfully held.
- Legal Topics
- Stock Theft, Evidence Evaluation, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwita Masioga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced was sufficient to sustain a conviction for stock theft against the appellant.
- 2 Whether the sentence imposed was appropriate given the recovery of the stolen animal and the period already served.
Ratio Decidendi
The court found that the testimonies of PW3 and PW4, who both saw the appellant driving the stolen cow towards Transmara District at the material time, provided direct and credible evidence linking the appellant to the theft. The identification was reliable as the appellant was well known to both witnesses. The recovery of the cow in PW2's compound, although unexplained, corroborated the sequence of events. The appellant's mere denial was insufficient to displace the prosecution's case. However, considering that the stolen animal was recovered and the appellant had already served one year and four months in jail, the court held that the sentence imposed was excessive and reduced it to the...
Court Disposition
Appeal against sentence allowed; conviction upheld; sentence reduced to period served; appellant set at liberty unless otherwise lawfully held.
Orders
- The appeal against sentence is allowed.
- The sentence is reduced to the period already served.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Criminal Appeal 84 of 2007
MWITA MASIOGA ………………………….………. APPELLANT
VERSUS
REPUBLIC ………………………...…………….. RESPONDENT
(From the original conviction and sentence in the Senior Resident
Magistrate’s Court at Kehancha Criminal Case No.1114 of 2006
by J. R. NDURURI ESQ., RM)
JUDGMENT
The appellant was charged with stealing stock contrary to section 278 of the Penal Code. The particulars of the offence were that on the 21st day of November 2006 at Maeta location in Kuria District the appellant stole one cow valued at Kshs.8000/= the property of Lucas Robi Sinda. The appellant was tried convicted and sentenced to five years’ imprisonment. The appellant was aggrieved by the conviction and sentence and preferred an appeal to this court.
He stated that there was insufficient evidence to convict him for the aforesaid offence.
The prosecution case briefly stated was that on the material day Lucas Robi Sinda, PW1, had tethered his cows on his field. At about 4. 00 p.m. his wife went to the field to check on the animals but she found one of them missing. She reported to PW1 and they followed the cow’s footmarks which led towards Tanzania. They found a certain river flooded and were therefore unable to cross the same and returned home. On the following day they received a report that the cow had been recovered and was in the home of one Ole Siringiti Tambuchi, PW2. PW2 said that he found the cow in his compound on the morning of 22nd November, 2006.
William Ole Ntieri, PW3, had seen the appellant driving a cow towards Transmara District on 21st November 2006 at about 4 p.m. Shortly thereafter he learnt that the complainant’s cow had been stolen. When the complainant described the stolen animal, PW3 realised that it was the same one that he had seen being driven away by the appellant.
Samuel Maswe Mwita, PW4, was at Migori River on the material day at about 4. 00 p.m. He saw the appellant crossing the river towards Transmara District while driving a cow.
The appellant merely denied having stolen the complainant’s cow. From the evidence on record, it is clear that PW3 and PW4 saw the appellant driving a cow towards Transmara District on the material day at around 4. 00 p.m. The appellant was well known to both PW3 and PW4. PW3 identified the cow as being the one that had been stolen from PW1. PW2 found the cow in his compound but did not know how it got there. All the evidence pointed at the appellant as the one who had stolen the complainant’s cow. His conviction was therefore warranted.
As regards sentence, the animal that was stolen was recovered. The appellant has been in jail for about one year and four months. He has been punished sufficiently. I therefore allow his appeal against sentence and reduce the same to the period already served. The appellant is now set at liberty unless otherwise lawfully held.
DATED, SIGNED and DELIVEREDat KISIIthis 30th day of October, 2008.
D. MUSINGA
JUDGE.
Delivered in the open court in the presence of:
1. Appellant
2. Mr. Mwita, Senior Principal State Counsel for the Republic
D. MUSINGA.
JUDGE.