[2022] KEHC 10236 (KLR)

Opany v Republic (Criminal Appeal E016 of 2021) [2022] KEHC 10236 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10236 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E016 of 2021

FA Ochieng, J

June 7, 2022

Between

Vincent Onyango Opany

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentence of the SPM’s Court at Winam by Hon. F. M. Rashid (SRM) dated the 4 th September 2019 in Criminal Case No. 703 of 2021)

Judgment

The Appellant, Vincent Onyango Opanywas convicted for the offence of House Breaking contrary to Section 304 (1) (b)of the Penal Code and Stealing contrary to Section 279 (b) of the Penal Code. 1. In his appeal, he stated that the conviction was against the weight of the evidence which was adduced in court.

2. He also complained that the trial court relied upon evidence which was contradictory.

3. In his view, the learned trial magistrate had not only failed to analyze the evidence tendered, but had also failed to give consideration to the alibi defence.

4. When canvassing the appeal, the Appellant submitted that the only reason why he was charged was that the prosecution witnesses had identified him as the person who had broken into the Complainant’s house, and who had then stolen from that house.

5. The Appellant pointed out that PW1 had initially been arrested as a suspect. Secondly, the Appellant pointed out that PW1 could not have left him in her house, since she told the court that she had not known him prior to his arrest.

6. The Appellant further submitted that the evidence tendered about the manner in which the stolen items were recovered, was inconsistent.

7. In any event, there was no Inventory of the items allegedly recovered from the Appellant’s possession. In the absence of a photograph of the recovered items, the Appellant submitted that there was no proof that he was found with the stolen items.

8. On the issue of the sentence of 7 Years imprisonment which the trial court imposed, the Appellant submitted that it was too harsh. He pointed out that he was now 28 years old, having been arrested when he was 25 years old.

9. He asked the Court to consider the fact that he was a young man, who was not yet married. As he was a first offender, the Appellant asked the Court to reduce the sentence, so as to enable him to have fresh start in life.

10. Being the first appellate Court, I have re-evaluated all the evidence on record.

11. The particulars of the offence for which the Appellant was convicted were that he broke and entered into the building used as a dwelling house by Emily Auma Nyagenga, and that he then stole therefrom a hoofer and 2 speakers (make God Tech), all valued at Kshs 5,000/-. The said items were the property of Emily Auma Nyagenga.

12. PW1, Peris Akinyi,is a sister to the father of the Appellant. She testified that on the material day, the Appellant visited her at her house in Mamboleo.

13. PW1 left the Appellant in her house when she was taking her child to school.

14. Upon her return, PW1 did not find the Appellant in her house. However, she noted that a table had been placed on top of a shelf.

15. Later that day, PW2 went to the house of PW1, who is her neighbour. PW2 complained that her hoofer had been stolen.

16. When PW2 testified, she confirmed that when she found her hoofer stolen, she reported to the police.

17. Both PW1 and PW2 testified that the police told PW1 to pay for the hoofer.

18. However, the hoofer was later recovered.

19. Both PW1, and PW3 who was the Investigating Officer, testified that the hoofer was recovered from the house of the Appellant.

20. At the time when the hoofer was stolen from the Complainant’s house, she was at her place of business, which was at Kibuye.

21. Therefore, as the Complainant said in her testimony, she did not know the Appellant. By the time when the Complainant saw her hoofer, (after the incident), it was with PW1.

22. PW3, Corporal Abdul Husseinwas the Investigating Officer. He said that he arrested the Appellant at his hiding place, within the County hospital.

23. Thereafter, the Appellant led the police, together with PW1, to his house, where the stolen hoofer was recovered. The speaker which had been stolen from PW2, was also recovered from the Appellant’s house.

24. An analysis of the evidence yielded no inconsistencies.

25. I also find that the failure to take photos of the Appellant’s house was not prejudicial to him or to the prosecution’s case.

26. The Appellant personally led the police and his aunt (PW1) to his house, where the stolen items were recovered. In the circumstances, the failure to make available an inventory of the recovered items, was not a violation of the Appellant’s right to a fair trial.

27. When he was put to his defence, the Appellant denied committing the offence. He said that when he was arrested at the County hospital, he was there for the purposes of seeking medical treatment for a headache. In other words, the Appellant was not in hiding.

28. The Appellant implicated PW1 for the offence, and indicated that initially it was PW1 was arrested. He therefore expressed surprise when his aunt was released, leaving him to face trial alone.

29. In my understanding of the evidence on record, the police pressurized PW1 to pay the Complainant for the items she had lost. The police did so because the thief or thieves gained entry into the Complainant’s house, through the house of PW1.

30. Logically, therefore, PW1 was a suspect.

31. However, when the Appellant led the police and PW1 to his house, where the stolen items were recovered, it was understandable for the police to set PW1 free.

32. The learned trial magistrate correctly applied the doctrine of recent possession.

33. However, there is one difficulty, as the learned state counsel, Ms Maureen Odumba has conceded.

34. Pursuant to Section 304 of the Penal Code, a person who breaks and enters any building, tent or vessel which is used as a human dwelling, commits an offence, if had the intention of committing a felony therein.

35. Secondly, if the person commits a felony in any such building, tent or vessel, and he then breaks out thereof, he is guilty of the offence of housebreaking.

36. From the evidence adduced by the prosecution herein, the Appellant did commit the offence of housebreaking.

37. However, in the charge sheet, that offence was joined together with another offence, which is defined at Section 279 (b) of the Penal Code.

38. The said statutory provisions is found under Chapter 26 of the Penal Code, which groups together the various offences of theft.

39. Section 279 (b) reads as follows;“If the theft is committed under any ofthe circumstances following, that is tosay –(b)If the thing is stolen in a dwelling-house, and its value exceeds onehundred shillings, or the offenderat or immediately before or afterthe time of stealing uses orthreatens to use violence to anyperson in the dwelling-house:……………..the offender is liable to imprisonment forfourteen years.”

40. In the case before me, the Appellant did steal from a dwelling-house, and the value of the hoofer and speakers which he stole, exceeded Kshs 100/=.

41. Therefore, he could have been convicted under Section 279 (b) of the Penal Code.

42. However, instead of charging the Appellant either under Section 304 or under Section 279 (d) of the Penal Code, the prosecution lumped together the 2 offences into a single one.

43. The person convicted for Housebreaking and burglary is liable to imprisonment for 7 years.

44. Meanwhile, the person convicted for theft from a dwelling house is liable to imprisonment for 14 years.

45. It was thus not clear to the Appellant what the exact charge he was facing, due to the duplicity in the charges preferred against him.

46. In the case of Popevs R(1960) E.A. 132 Sir Alistair Forbes v.p. held as follows;“It is well established that a count whichcharges two offences is bad for duplicity,and that a conviction under it cannotstand.”

47. In Selimia Mbeu Owuor & Another Vs Republic, Criminal Appeal No.68 of1999, the Court of Appeal held that a duplex charge would not hold and it would thus be a nullity.

48. In David Beya Aziz Alias Ngarama Vs Republic, Criminal Appeal No. 100 Of 1999, the Court of Appeal held that the charge was incurably bad for duplicity.

49. However, in Reuben Nyakango Mose & Another Vs RepublicCriminal Appeal No. 606 Of 2010, the Court of Appeal arrived at a different conclusion. To my mind, it is significant that the Court arrived at its determination after it had given due consideration to the earlier decisions cited above.

50. The second significant fact is that in that case, the Appellants were faced with charges similar to those which the Appellants herein faced.

51. The Court pointed out the following;“……. in deciding whether there is duplicityin a charge, the test is whether a failureof justice has occurred or the accused hasbeen prejudiced.”

52. The reasoning for that holding was that duplicity was a question of fact and degree, and that the purpose of the rule is to enable the accused to know the case he has to meet.

53. If charges are mixed up and uncertain, there would be a real risk that the accused would be confused: and that is the risk which the rule on duplicity is intended to counter.

54. There may be facts which give rise to more than one offence. Pursuant to Section 135 (1) of the Criminal Procedure Code;“Any offences, whether felonies ormisdeamenours, may be chargedtogether in the same charge orinformation if the offences chargedare founded on the same facts, orare part of a series of offences ofthe same or similar character.”

55. Whilst the law permits the bringing of more than one offence against an accused, in one case, Section 135 (2) of the Criminal Procedure Codeoffers guidance on how it is to be done: It reads as follows;“Where more than one offence ischarged in a charge or information,a description of each offence socharged shall be set out in aseparate paragraph of the chargeor information called a count.”

56. Therefore, in this case, it would have been permissible to prefer charges against the Appellant, for the 2 distinct offences; Provided that each offence was set out as a separate count.

57. However, that was not done, as the 2 distinct offences were lumped together in one count. On account of that joinder, the charge violated the provisions of Section 135 (2) of the Criminal Procedure Code. That could lead to the conclusion that the charge was fatally defective.

58. However, as the learned Judges of Appeal noted, in the case of Reuben Nyakango Mose & Another Vs Republic(above-cited);“Then there is the Second Schedule of the Criminal Procedure Code on ‘forms of stating offences in Informations.’Form 9 is on Burglary and gives the form of the offence as follows;9 – BurglaryBurglary, contrary to section 304,and stealing, contrary to section 279 of the Penal Code.”

59. On the one hand, there is the wording of Section 135 (2) of the Criminal Procedure Code, which stipulates that each separate offence ought to be in its own paragraph or count; whilst on the other hand, the Second Schedule provides guidance on how the 2 counts of burglary and stealing may be brought together in one count.

60. When examining the question as to whether or not an accused person who was charged with the offences of burglary and stealing, would be prejudiced on the grounds that he was unaware of the case facing him, the Court of Appeal said;“It will, in any event, be seen thatframing of the charge of burglaryin the Criminal Procedure Codeenvisages that another offence maybe committed in the course ofburglary. That is why the relevantform is couched to include burglaryand stealing in the same charge.The authorities we have visitedand all relevant law envisage thatbecause a thief who breaks into adwelling house or a vessel will haveulterior motives when he formed theintention to break into the house orvessel, then what follows? This will ordinarily but not

necessarily be stealing- should beincluded in the burglary charge.There cannot therefore be duplicitywhen the offences of burglary andstealing are combined in the samecharge.”

61. In this case, the Appellant broke into the Complainant’s house, with the intention of committing a crime therein.

62. He then stole the Complainant’s hoofer and speakers, which he carted away.

63. The stolen items were recovered from the Appellant’s house, when he led the Investigating Officer and PW1 to that place.

64. In effect, there was both burglary and theft.

65. Accordingly, I find that the Appellant could not have been prejudiced by the manner in which the 2 counts were combined into one.

66. Meanwhile, the prescribed sentence for burglary was 7 years, whilst for theft was 14 years imprisonment.

67. If the Appellant had been sentenced to 14 years imprisonment, I would most probably set aside that sentence because that would have been the higher sentence prescribed for one of the 2 offences for which the Appellant had been tried, in a joint charge.

68. He was given the lesser of the sentences prescribed for the 2 counts; and therefore he was accorded the benefit of the lesser punishment for the offences.

69. In the result, the appeal was dismissed in its entirety. I uphold both conviction and sentence.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE